To link to the entire object, paste this link in email, IM or documentTo embed the entire object, paste this HTML in websiteTo link to this page, paste this link in email, IM or documentTo embed this page, paste this HTML in website

SUMMARIES OF SUBSTANTIVE
RATIFIED LEGISLATION
2003 GENERAL ASSEMBLY
2003 EXTRA SESSION
2003 SECOND EXTRA SESSION
2004 REGULAR SESSION
RESEARCH DIVISION
N. C. GENERAL ASSEMBLY
SEPTEMBER 2004
400 copies of this document were published at an estimated cost of or about $ 9.30 per copy.
September 2004
To the Members of the 2004 Session of the 2003 General Assembly:
This publication contains summaries of all substantive legislation of general applicability and certain local legislation having general import of the 2003 Extra Session, the 2003 Second Extra Session, and the 2004 Regular Session. Most local bills are not analyzed in this publication. Significant appropriations matters related to the subject area specified are also included. For an in- depth review of the appropriations and revenue process, please refer to Overview: Fiscal and Budgetary Actions, prepared by the Fiscal Research Division.
The document is organized alphabetically by subject areas. Where feasible, the subject area is further divided into subgroups. Each subject area also includes a listing of legislative, independent, and agency studies. This year we have included in the appendix a list of the studies and reports authorized by the 2004 Session of the 2003 General Assembly. A bill/ session law index listing the page number of each summary is at the end of the publication.
This document is the result of a combined effort by the following staff members of the Research Division: Sandra Alley, Dee Atkinson, Cindy Avrette, Dickie Brown, Brenda Carter, Drupti Chauhan, Erika Churchill, Karen Cochrane- Brown, Judy Collier, Tim Dodge, Bill Gilkeson, George Givens, Kory Goldsmith, Trina Griffin, Tim Hovis, Jeff Hudson, Shirley Iorio, Dianna Jessup, Robin Johnson, Sara Kamprath, Theresa Matula, Jennifer McGinnis, Joe Moore, Shawn Parker, Hal Pell, Giles S. Perry, Wendy Graf Ray, Walker Reagan, Barbara Riley, Steve Rose, and Susan Sitze. Theresa Matula is chief editor of this year’s publication, and Drupti Chauhan is co- editor. Shawn Parker and Lucy Anders of the Research Division also helped edit this document. The specific staff members contributing to each subject area are listed directly below the chapter heading for that area. Staff members' initials appear after their names and after each summary they contributed. If you would like further information regarding any legislation in the various summaries, please contact the Research Division Office at ( 919) 733- 2578.
This document is also available on the World Wide Web. Go to the General Assembly’s homepage at http:// www. ncga. state. nc. us. Click on " Legislative Publications." It is listed under Research. Each summary is hyperlinked to the final bill text, the bill history, and any applicable fiscal note.
It is hoped that this document will provide a useful source of information for the members of the General Assembly and the public in North Carolina. We would appreciate receiving any suggestions for this publication's improvement.
Yours truly,
Terrence D. Sullivan
Director of Research Guide to Staff Initials
( BC) Brenda Carter
( BG) Bill Gilkeson
( BR) Barbara Riley
( CA) Cindy Avrette
( DA) Dee Atkinson
( DB) Dickie Brown
( DC) Drupti Chauhan
( DJ) Dianna Jessup
( EC) Erika Churchill
( GG) George Givens
( GSP) Giles S. Perry
( HP) Hal Pell
( JC) Judy Collier
( JH) Jeff Hudson
( JM) Jennifer McGinnis
( JHM) Joe Moore
( KCB) Karen Cochrane- Brown
( KG) Kory Goldsmith
( RJ) Robin Johnson
( SA) Sandra Alley
( SI) Shirley Iorio
( SK) Sara Kamprath
( SP) Shawn Parker
( SR) Steve Rose
( SS) Susan Sitze
( TD) Tim Dodge
( TG) Trina Griffin
( TH) Tim Hovis
( TM) Theresa Matula
( WGR) Wendy Graf Ray
( WR) Walker Reagan
TABLE OF CONTENTS
CHAPTER 1: AGRICULTURE AND WILDLIFE................................................................... 1
ENACTED LEGISLATION.............................................................................................................. 1
STUDIES........................................................................................................................ ............ 3
Legislative Research Commission......................................................................................... 3
Referrals to Existing Commissions/ Committees.................................................................... 3
Referrals to Departments, Agencies, Etc............................................................................... 3
CHAPTER 2: ALCOHOLIC BEVERAGE CONTROL.......................................................... 4
ENACTED LEGISLATION.............................................................................................................. 4
STUDIES........................................................................................................................ ............ 5
Legislative Research Commission......................................................................................... 5
CHAPTER 3: CHILDREN AND FAMILIES............................................................................ 6
ENACTED LEGISLATION.............................................................................................................. 6
STUDIES........................................................................................................................ .......... 14
New/ Independent Studies/ Commissions............................................................................... 14
CHAPTER 4: CIVIL LAW AND PROCEDURE.................................................................... 16
ENACTED LEGISLATION............................................................................................................ 16
CHAPTER 5: COMMERCIAL LAW AND CONSUMER PROTECTION........................ 22
ENACTED LEGISLATION............................................................................................................ 22
STUDIES........................................................................................................................ .......... 25
Legislative Research Commission....................................................................................... 25
Referrals to Existing Commissions/ Committees.................................................................. 26
Referrals to Departments, Agencies, Etc............................................................................. 26
CHAPTER 6: CONSTITUTION AND ELECTIONS............................................................ 28
ENACTED LEGISLATION............................................................................................................ 28
STUDIES........................................................................................................................ .......... 33
New/ Independent Studies/ Commissions............................................................................... 33
CHAPTER 7: COURTS, JUSTICE AND CORRECTIONS.................................................. 34
ENACTED LEGISLATION............................................................................................................ 34
STUDIES........................................................................................................................ .......... 46
Legislative Research Commission....................................................................................... 46
Referrals to Existing Commissions/ Committees.................................................................. 46
Referrals to Departments, Agencies, Etc............................................................................. 47
CHAPTER 8: CRIMINAL LAW AND PROCEDURE.......................................................... 49
ENACTED LEGISLATION............................................................................................................ 49
STUDIES........................................................................................................................ .......... 55 i
Legislative Research Commission....................................................................................... 55
Referrals to Departments, Agencies, Etc............................................................................. 56
CHAPTER 9: EDUCATION..................................................................................................... 57
ENACTED LEGISLATION............................................................................................................ 57
Public Schools...................................................................................................................... 57
Higher Education................................................................................................................. 63
Community Colleges............................................................................................................ 63
Universities................................................................................................................... ...... 65
STUDIES........................................................................................................................ .......... 67
Legislative Research Commission....................................................................................... 67
New/ Independent Studies/ Commissions............................................................................... 68
Referrals to Existing Commissions/ Committees.................................................................. 68
Referrals to Departments, Agencies, Etc............................................................................. 69
CHAPTER 10: ENVIRONMENT AND NATURAL RESOURCES..................................... 73
ENACTED LEGISLATION............................................................................................................ 73
Coastal Development........................................................................................................... 73
Environmental Health.......................................................................................................... 74
Fisheries...................................................................................................................... ........ 75
Parks and Public Spaces...................................................................................................... 78
Underground Storage Tanks................................................................................................ 79
Water Quality/ Quantity/ Groundwater................................................................................. 81
Miscellaneous.................................................................................................................. ... 84
STUDIES........................................................................................................................ .......... 87
Legislative Research Commission....................................................................................... 87
New/ Independent Studies/ Commissions............................................................................... 87
Referrals to Existing Commissions/ Committees.................................................................. 87
Coastal Resources Commission........................................................................................... 87
Commission for Health Services.......................................................................................... 88
Environmental Review Commission.................................................................................... 88
Joint Legislative Commission on Seafood and Aquaculture................................................ 89
Joint Legislative Growth Strategies Oversight Committee.................................................. 89
Marine Fisheries Commission............................................................................................. 90
Referrals to Departments, Agencies, Etc............................................................................. 90
CHAPTER 11: FINANCE......................................................................................................... 92
ENACTED LEGISLATION............................................................................................................ 92
STUDIES........................................................................................................................ ........ 100
Legislative Research Commission..................................................................................... 100
Referrals to Existing Commissions/ Committees................................................................ 101
New/ Independent Studies/ Commissions............................................................................. 102
CHAPTER 12: HEALTH AND HUMAN SERVICES......................................................... 103
ENACTED LEGISLATION.......................................................................................................... 103
STUDIES........................................................................................................................ ........ 112 i i
Legislative Research Commission..................................................................................... 112
New/ Independent Studies/ Commissions............................................................................. 113
Referrals to Existing Commissions/ Committees................................................................ 113
Referrals to Departments, Agencies, Etc........................................................................... 115
CHAPTER 13: INSURANCE.................................................................................................. 117
ENACTED LEGISLATION.......................................................................................................... 117
STUDIES........................................................................................................................ ........ 119
Legislative Research Commission..................................................................................... 119
New/ Independent Studies/ Commissions............................................................................. 120
CHAPTER 14: LABOR AND EMPLOYMENT................................................................... 121
ENACTED LEGISLATION.......................................................................................................... 121
General Labor and Employment........................................................................................ 121
Governmental Employment................................................................................................ 125
State Health Plan............................................................................................................... 128
STUDIES........................................................................................................................ ........ 129
Legislative Research Commission..................................................................................... 129
New/ Independent Studies/ Commissions............................................................................. 130
Referrals to Existing Commissions/ Committees................................................................ 131
Referrals to Departments, Agencies, Etc........................................................................... 131
CHAPTER 15: LOCAL GOVERNMENT............................................................................. 133
ENACTED LEGISLATION.......................................................................................................... 133
STUDIES........................................................................................................................ ........ 135
CHAPTER 16: MILITARY, VETERANS' AND INDIAN AFFAIRS................................ 137
ENACTED LEGISLATION.......................................................................................................... 137
Military and Veterans' Affairs........................................................................................... 137
Indian Affairs..................................................................................................................... 138
STUDIES........................................................................................................................ ........ 138
New/ Independent Studies/ Commissions............................................................................. 138
CHAPTER 17: OCCUPATIONAL BOARDS AND LICENSING...................................... 140
ENACTED LEGISLATION.......................................................................................................... 140
STUDIES........................................................................................................................ ........ 144
Legislative Research Commission..................................................................................... 144
Referrals to Departments, Agencies, Etc........................................................................... 145
CHAPTER 18: PROPERTY, TRUSTS, AND ESTATES.................................................... 146
ENACTED LEGISLATION.......................................................................................................... 146
STUDIES........................................................................................................................ ........ 147
CHAPTER 19: RESOLUTIONS............................................................................................. 149
JOINT RESOLUTIONS............................................................................................................... 149 ii i
CHAPTER 20: RETIREMENT.............................................................................................. 151
ENACTED LEGISLATION.......................................................................................................... 151
STUDIES........................................................................................................................ ........ 154
Legislative Research Commission..................................................................................... 154
Referrals to Departments, Agencies, Etc........................................................................... 154
CHAPTER 21: SENIOR CITIZENS...................................................................................... 156
ENACTED LEGISLATION.......................................................................................................... 156
STUDIES........................................................................................................................ ........ 158
Legislative Research Commission..................................................................................... 158
New/ Independent Studies/ Commissions............................................................................. 158
Referrals to Existing Commissions/ Committees................................................................ 159
Referrals to Departments, Agencies, Etc........................................................................... 159
CHAPTER 22: STATE GOVERNMENT.............................................................................. 162
ENACTED LEGISLATION.......................................................................................................... 162
Agencies and Departments................................................................................................ 162
Boards and Commissions................................................................................................... 165
Budget Process and Use of State Funds............................................................................ 166
Capital Facilities and State Property................................................................................ 168
Parks and Recreation......................................................................................................... 170
Purchase and Contracts..................................................................................................... 170
Miscellaneous.................................................................................................................. . 171
STUDIES........................................................................................................................ ........ 173
Legislative Research Commission..................................................................................... 173
New/ Independent Studies/ Commissions............................................................................. 175
Referrals to Existing Commissions/ Committees................................................................ 176
Referrals to Departments, Agencies, Etc........................................................................... 177
CHAPTER 23: TECHNOLOGY............................................................................................. 179
ENACTED LEGISLATION.......................................................................................................... 179
STUDIES........................................................................................................................ ........ 181
CHAPTER 24: TRANSPORTATION.................................................................................... 182
ENACTED LEGISLATION.......................................................................................................... 182
Department of Transportation........................................................................................... 182
License Plates.................................................................................................................... 184
Motor Vehicle Law............................................................................................................. 185
Public Transportation and Rail......................................................................................... 188
Trucks......................................................................................................................... ....... 188
Miscellaneous.................................................................................................................. . 189
STUDIES........................................................................................................................ ........ 190
Legislative Research Commission..................................................................................... 190
New/ Independent Studies/ Commissions............................................................................. 190
Referrals to Existing Commissions/ Committees................................................................ 190
Referrals to Departments, Agencies, Etc........................................................................... 192 iv
CHAPTER 25: UTILITIES..................................................................................................... 193
ENACTED LEGISLATION.......................................................................................................... 193
STUDIES........................................................................................................................ ........ 193
Legislative Research Commission..................................................................................... 193
Independent Studies/ Commissions..................................................................................... 193
CHAPTER 26: VETOED LEGISLATION............................................................................ 194
APPENDIX: STUDIES AND REPORTS AUTHORIZED BY 2004 SESSION................. 195
INDEX.......................................................................................................................... .............. 227
v
Chapter 1
Agriculture and Wildlife
Erika Churchill ( EC) and Barbara Riley ( BR)
Enacted Legislation
Allow Family Business to Lease Farmland
S. L. 2004- 008 ( HB 1465). See Finance.
Funds for Farmland Preservation Projects
S. L. 2004- 124, Sec. 6.31 ( HB 1414, Sec. 6.31) provides that for fiscal year 2004- 2005 only, up to $ 4,100,000 may be allocated by the Board of Trustees of the Clean Water Management Trust Fund to match federal, State, local, and private farmland preservation and forestland preservation funds and to acquire permanent conservation easements on working farms and forests.
The section also directs the Department of Agriculture and Consumer Services ( Department) to prepare a master plan for farmland preservation in the State with the goal of preserving rural landscapes and promoting working farms as a base for the economic, environmental, and social interests of rural North Carolina. In preparing the plan, the Department is to review the Farmland Preservation Enabling Act and other conservation, rural, and economic development programs. The Department is required to report its findings no later than March 31, 2005, to the House Agriculture Committee and the Senate Committee on Agriculture, Environment and Natural Resources.
This section became effective July 1, 2004. ( BR)
Sale of Umstead Farm Dairy Herd And Use of Proceeds
S. L. 2004- 124, Sec. 11.1 ( HB 1414, Sec. 11.1) provides that the Department of Agriculture and Consumer Services may sell the dairy herd at the Umstead Farm Unit in Butner. The funds are to be placed in a non- reverting special revenue fund with the Department. The proceeds from the sale may be used only for the following:
􀂾 To relocate the milking parlor equipment and nutrition barn from Umstead Farm to the Piedmont Research Station;
􀂾 To purchase additional dairy animals to fully utilize the Piedmont Research Station;
􀂾 To purchase or construct grain and feed storage facilities and equipment and supplies necessary for dairy research at Department dairy units;
􀂾 To demolish or remove unneeded or obsolete dairy buildings at Umstead Farm or for the closure of any animal waste management system located at the Umstead Farm unit.
Beginning with the 2005- 2007 biennium, the special revenue fund will be included in the Governor's recommended budget.
This section became effective July 1, 2004. ( BR)
Accounting for Wildlife Resources Commission Revenue
S. L. 2004- 124, Sec. 12.4 ( HB 1414, Sec. 12.4). See State Government.
Chapter 1 Agriculture and Wildlife
Page 1
Wildlife Resources Commission Temporary Exemption of Surplus Property/ Recyclable Material Fee
S. L. 2004- 124, Sec. 12.5 ( HB 1414, Sec. 12.5). See State Government.
Cost Share Funds For Limited Resource Farmers Clarifications
S. L. 2004- 124, Sec. 12.6 ( HB 1414, Sec. 12.6) amends G. S. 143- 215.74( b)( 9) by adding to the definition of " limited resource farmer" the qualification that the farmer have an adjusted household income in each of the previous two years that is at or below the greater of the county median household income or two times the national poverty level.
This section became effective July 1, 2004. ( BR)
Phosphorous Nutrient Management/ Animal Feedlots
S. L. 2004- 176 ( HB 1112). See Environment and Natural Resources.
Amend Environmental Laws – 3/ Appointments
S. L. 2004- 195 ( SB 823). See Environment and Natural Resources.
Dog Day Care Facilities
S. L. 2004- 199, Sec. 12 ( SB 1225, Sec. 12) amends G. S. 19A- 24( 1) to clarify that dog day care facilities with a ratio of dogs to workers of not more than 10 to one are not subject to regulations applicable to boarding kennels with respect to separate runs for the dogs, so long as the dogs are not boarded overnight.
This section became effective August 17, 2004. ( EC)
Milk Commission Repealed
S. L. 2004- 199, Sec. 27 ( SB 1225, Sec. 27) repeals the Milk Commission in the Department of Commerce, and makes conforming amendments to that repeal.
This section became effective August 17, 2004 ( EC)
Animal Shelters
S. L. 2004- 199, Sec. 39 ( SB 1225, Sec. 39) amends G. S. 153A- 442 and G. S. 160A- 493 to require that animal shelters established, equipped, operated or maintained or contributed to by a county or city meet the same standards as animal shelters operated by private organizations regulated under Chapter 19A, Protection of Animals, by the Department of Agriculture.
This section became effective August 17, 2004. ( EC)
Chapter 1 Agriculture and Wildlife
Page 2
Studies
Legislative Research Commission
Agribusiness and Agricultural Teaching Fellows Study
S. L. 2004- 161, Sec. 2.1( 9) j ( SB 1152, Sec. 2.1( 9) j) authorizes the Legislative Research Commission to study agribusiness and agricultural teaching fellows. The Commission may report its findings, together with any recommended legislation, to the 2005 General Assembly upon its convening.
This section became effective August 2, 2004. ( BR)
Referrals to Existing Commissions/ Committees
Agriculture and Forestry Awareness Study Commission Studies
S. L. 2004- 161, Part XXX ( SB 1152, Part XXX) provides a list of topics that the Agriculture and Forestry Awareness Study Commission may study. These topics include:
􀂾 Agricultural commodity incentives.
􀂾 Food Safety and Security.
􀂾 Dairy Industry.
The Commission may report its findings, together with any recommended legislation, to the 2005 General Assembly upon its convening.
This part became effective August 2, 2004. ( BR)
Referrals to Departments, Agencies, Etc.
Study Operations, Funding And Efficiencies For Department Of Agriculture Research Stations
S. L. 2004- 124, Sec. 11.2 ( HB 1414, Sec. 11.2) directs the Department of Agriculture and Consumer Services ( Department) and the Agricultural Research Service at North Carolina State University, in consultation with the Fiscal Research Division, to study the 18 research stations within the Department and the differences in how the Department and the Agricultural Research Service fund and operate the stations, allocate federal funds for administration of the stations and the efforts of the two agencies to collaborate on providing necessary funding and management of the research stations. The Department and the Agricultural Research Service, in consultation with the Fiscal Research Division shall report to the House and Senate Appropriations Subcommittees on Natural and Economic Resources no later than December 15, 2004.
This section became effective July 1, 2004. ( BR)
For a complete list of the studies and reports authorized by the 2004 Session of the
2003 General Assembly, please refer to the Appendix contained in this publication. Chapter 1 Agriculture and Wildlife
Page 3
Chapter 2
Alcoholic Beverage Control
Dickie Brown ( DB), Brenda Carter ( BC), Hal Pell ( HP), and Susan Sitze ( SS)
Enacted Legislation
NC Vineyard Amendments
S. L. 2004- 135 ( SB 74) expands the definition of " unfortified" wine to permit unfortified wineries in this State to use brandy in the manufacturing process. The act amends the definition of " fortified" wine to include wine of more than 16% and no more than 24% alcohol by volume. The definition of " unfortified" wine is amended to include wine of 16% or less alcohol by volume. The act authorizes the holder of an unfortified winery permit to receive and sell at the winery unfortified wine produced under contract with the winery. The contract wine may also be sold at affiliated retail outlets of the winery located on or adjacent to the winery. ABC stores may continue to sell wine products that met the preexisting ( July 7, 2004) definition of fortified wine.
This act becomes effective October 1, 2004. ( BC)
Use of Alcohol in Culinary Classes
S. L. 2004- 199, Sec. 8 ( SB 1225, Sec. 8) permits the delivery to, and the possession or consumption of alcoholic beverages, by persons less than age 21 when under the direct supervision of an instructor in a culinary class that is part of established culinary curriculum at an accredited college or university.
This section became effective August 17, 2004. ( BC)
Tourism ABC Establishments
S. L. 2004- 199, Sec. 9 ( SB 1225, Sec. 9) authorizes tourism ABC establishments to sell on- premises fortified wine and mixed beverages without an election. Tourism ABC establishments include restaurants or hotels within 1.5 miles of a ramp of the Blue Ridge Parkway.
This section became effective August 17, 2004. ( BC)
Unfortified Wineries/ Retail Sales
S. L. 2004- 199, Sec. 11 ( SB 1225, Sec. 11) specifies that the authority for the holder of an unfortified winery permit to obtain retail permits to sell its wine at other locations in the State, applies only with regard to wine manufactured by the winery or, in limited circumstances, to wine produced under the winery's label from produce owned by the winery.
This section became effective August 17, 2004. ( BC)
Township ABC Elections
S. L. 2004- 203, Sec. 24 ( HB 281, Sec. 24) amends a recently enacted provision that authorizes a township to hold an ABC election if the township is located in a county where the population of all cities in the county, that have previously approved the sale of any kind of alcoholic beverages, comprises more than twenty percent ( 20%) of the total county population.
Chapter 2 Agriculture and Wildlife
Page 4
The act makes it clear that the provision applies only to malt beverage, unfortified wine, and mixed beverage elections. It does not authorize townships to hold ABC store elections.
This section became effective August 17, 2004. ( BC)
Registration Penalty for Malt Beverage & Wine Permits
S. L. 2004- 203, Sec. 25 ( HB 281, Sec. 25) provides for the revocation of malt beverage, fortified wine, and unfortified wine permits for failure to register and pay the required annual inspection fee, which is not refundable. The act also provides an exception to the statute that prohibits a person from obtaining a subsequent permit within a three- year period following a revocation; a revocation based solely on a permittee's failure to pay the annual registration and inspection fee will not result in the three- year disqualification.
This section became effective August 17, 2004. ( BC)
Retail Outlets for Small Breweries
S. L. 2004- 203, Sec. 29 ( HB 281, Sec. 29) allows a brewery selling fewer than 25,000 barrels produced by it per year to consumers at the brewery, to wholesalers, to retailers, and to exporters to also sell the malt beverages manufactured by the brewery at not more than three other locations in the State upon obtaining the appropriate retail permits. A brewery operating any additional retail location is required to also offer for sale at that location a reasonable selection of competitive malt beverage products.
This section became effective August 17, 2004. ( BC)
Studies
Legislative Research Commission
Alcoholic Beverage Control
S. L. 2004- 161, Sec. 2.1( 1) f ( SB 1152, Sec. 2.1( 1) f) authorizes the Legislative Research Commission ( LRC) to study the topic of Alcoholic Beverage Control. If the LRC decides to study the topic, it may report its findings, together with any recommended legislation, to the 2005 General Assembly upon its convening.
This section became effective August 3, 2004. ( BC)
For a complete list of the studies and reports authorized by the 2004 Session of the
2003 General Assembly, please refer to the Appendix contained in this publication. Alcoholic Beverage Control Agriculture and Wildlife
Page 5
Chapter 3
Children and Families
Sandra Alley ( SA), Drupti Chauhan ( DC), Erika Churchill ( EC),
Dianna Jessup ( DJ), and Wendy Graf Ray ( WGR)
Enacted Legislation
Centralize Criminal Record Check Functions
S. L. 2004- 124, Sec. 10.1 ( HB 1414, Sec. 10.1). See State Government.
TANF Benefit Implementation
S. L. 2004- 124, Sec. 10.19A ( HB 1414, Sec. 10.19A) amends the provision contained in the approved North Carolina Temporary Assistance for Needy Families State Plan FY 2003- 2005 that eliminated pay- after- performance as a benefit delivery method for two- parent families so that the provision will only be eliminated if the federal two- parent work participation rate is eliminated.
This section became effective July 1, 2004. ( SA)
IV- E Child Caring Institutions
S. L. 2004- 124, Sec. 10.19B ( HB 1414, Sec. 10.19B) requires the Department of Health and Human Services to work with the federal government and child caring institutions to ensure that adequate funds are available to support child caring institution operations.
This section became effective July 1, 2004. ( SA)
Early Intervention Reporting Requirement
S. L. 2004- 124, Sec. 10.29 ( HB 1414, Sec. 10.29) directs the Department of Health and Human Services, Division of Public Health, to track and report on the number of children referred to the Early Intervention Program by Department of Social Services abuse and neglect agents. The report must include the number and types of services provided to these children and the fiscal impact to the program. The report is due by January 30, 2005 and is to be submitted to the House of Representatives Appropriations Subcommittee on Health and Human Services, the Senate Appropriations Committee on Health and Human Services, and the Fiscal Research Division.
This section became effective July 1, 2004. ( DC)
Authorize Child Care Commission To Adopt Rules For Child Care Facilities For Medically Fragile Children
S. L. 2004- 124, Sec. 10.35 ( HB 1414, Sec. 10.35) expands the powers and duties of the Child Care Commission to include the adoption of rules for child care facilities that provide care for medically fragile children.
This section became effective July 1, 2004. ( DC)
Chapter 3 Children and Families
Page 6
Criminal History Record Checks for Local Child Care Centers
S. L. 2004- 124, Sec. 10.36 ( HB 1414, Sec. 10.36) requires the Division of Child Development to use lapsed salaries to create up to three additional temporary positions during fiscal year 2005 to eliminate the backlog in the conduct of criminal history record checks for local child care centers.
This section became effective July 1, 2004. ( EC)
Increase North Carolina Partnership for Children Board Membership
S. L. 2004- 124, Sec. 10.37 ( HB 1414, Sec. 10.37) increases the membership of the North Carolina Partnership for Children by one. The new member is the Director of the More at Four Pre- Kindergarten Program, or that person's designee.
This section became effective July 1, 2004. ( EC)
More at Four Program
S. L. 2004- 124, Sec. 10.38 ( HB 1414, Sec. 10.38) requires the More at Four Pre- Kindergarten Program ( More at Four) to review the number of slots filled by counties on a monthly basis and shift the unfilled slots to counties with waiting lists. Slots remaining unfilled as of January 30, 2005 will be transferred to the Division of Child Development to meet the needs of the waiting list for subsidized child care. The provision also requires the program to establish income eligibility requirements for the program not to exceed seventy- five percent ( 75%) of the State median income to make the program consistent with the child care subsidy requirements. Up to twenty percent ( 20%) of children enrolled in More at Four may have family incomes in excess of seventy- five percent ( 75%) of median income if they have other designated risk factors.
This section became effective July 1, 2004. ( DJ)
Agape of North Carolina, Inc./ State Funds Program
S. L. 2004- 124, Sec. 10.39 ( HB 1414, Sec. 10.39) requires the Division of Social Services to include Agape of North Carolina, Inc. ( Agape), on its list of member agencies eligible to receive funding from the State Funds Program. Agape is a licensed, private child- placing agency located in Greensboro. Agape will be reimbursed for allowable expenditures from the State Fund For Child Caring Institutions for the uncompensated cost of care. Funding will be based on the current funding methodology applied to other eligible providers that historically have been reimbursed for expenditures with funds from the State Funds Program.
This section became effective July 1, 2004. ( DJ)
Adjust New Court Jurisdiction/ Amend Magistrate Term
S. L. 2004- 128 ( SB 577) makes the changes indicated below.
Section 1 of this act concerns increased jurisdiction by small claims court. For additional information, see Courts, Justice and Corrections.
Section 2 of this act concerns jurisdiction for revocation of probation for felony pleas heard in district court. For additional information, see Courts, Justice and Corrections.
Section 3 of this act concerns adding a drug treatment court program as intermediate punishment. For additional information, see Criminal Law and Procedure.
Chapter 3 Children and Families
Page 7
Sections 4 and 5 of this act concern the notice of a mechanics lien for storage charges for vehicles held under the driving while impaired forfeiture laws. For additional information, see Civil Law and Procedure.
Section 6 of this act authorizes the clerk of court to enter judgments by default. For additional information, see Civil Law and Procedure.
Sections 7 through 14 of this act concern termination of certain parental rights of persons convicted of first or second degree rape. For additional information, see Criminal Law and Procedure.
Section 15 of this act concerns prohibiting the threatening of a witness with the assertion of denial of parental rights. For additional information, see Criminal Law and Procedure.
Sections 16 through 18 of this act concern an amendment to the North Carolina Constitution to extent the Magistrate term to four years. For additional information, see Constitution and Elections.
Section 19 of this act concerns the number, term, and appointment of magistrates. For additional information, see Courts, Justice and Corrections.
Prevent Workplace Violence
S. L. 2004- 165 ( SB 916). See Civil Law and Procedure.
Strengthen Domestic Violence Laws
S. L. 2004- 186 ( HB 1354) makes various changes to strengthen the laws against domestic violence and to provide additional assistance to domestic violence victims.
Part I: Domestic Violence Offender Treatment. – The act requires attendance and completion of an abuser treatment program while on probation if the court finds that the defendant is responsible for acts of domestic violence and there is a program reasonably available to the defendant. If the court makes those findings, the court must order the treatment as a regular condition of probation unless the court finds that it would not be in the best interest of justice.
The act also requires the Department of Correction to establish a domestic violence treatment program for offenders in the custody of the Department whose official record includes a finding by the court that the offender committed acts of domestic violence. The Department must ensure that those inmates complete the domestic violence treatment program prior to being released, unless other requirements deemed critical by the Department prevent program completion. If the inmate does not complete the program, the Department must document, in the inmate's official record, specific reasons why that inmate did not or was not able to complete the program.
This part is effective December 1, 2004 and applies to offenses committed on or after that date.
Part II: Domestic Violence Training for Law Enforcement. – The act requires the North Carolina Criminal Justice Education and Training Standards Commission and the North Carolina Sheriffs' Education and Training Standards Commission to establish minimum standards for training of law enforcement officers in domestic violence. The training standards shall be developed for entry- level employment, for in- service training, and for certification of instructors, and shall include training in response to, and investigation of, domestic violence cases, as well as training in investigation for evidence based prosecutions.
The Commissions must have the training in place no later than March 1, 2005 and must report to the General Assembly on or before March 1, 2005 on the exact standards implemented and the date they were implemented.
This part became effective August 12, 2004.
Chapter 3 Children and Families
Page 8
Part III: Study of Anti- Violence Education in Schools and Training for School Personnel. – The act requires the Department of Public Instruction, in collaboration with the State Board of Education, to study the issue of anti- violence programs in schools. The Department is directed to address several questions and to look at different programs used across the country.
The Department is required to issue a preliminary report to the House Select Committee on Domestic Violence and the Joint Legislative Oversight Committee by November 15, 2004, and a final report to Education Oversight and the General Assembly by January 15, 2005.
The act also requires the Department of Public Instruction, in collaboration with the State Board of Education, to study training for school personnel dealing with students who are victims of physical violence and mental or verbal abuse, particularly instances of domestic and relationship violence.
The Department is required to issue a preliminary report to the House Select Committee on Domestic Violence and the Joint Legislative Oversight Committee by November 15, 2004, and a final report to Education Oversight and the General Assembly by January 15, 2005.
This part became effective August 12, 2004.
Part IV: Legal Services for Victims of Domestic Violence. – The act creates a new Domestic Violence Victim Assistance Act to provide legal services to domestic violence victims. This section requires the North Carolina State Bar to disburse funds under this act to legal services organizations that provide legal services to domestic violence victims.
The funds are disbursed to the organizations based on the counties they serve, with each county receiving a fixed 20% amount and the remaining 80% of the funds distributed to the counties based on the rate of actions filed for 50B domestic violence protective orders in that county.
The act creates a $ 100 fee for pro hac vice motions in North Carolina. A pro hac vice occurs when an out of state attorney, who is not licensed to practice law in North Carolina, asks a North Carolina court to allow that attorney to appear in court in North Carolina for one particular case. Currently, North Carolina does not charge any fee for these motions, although many states do. The fees collected go to the General Court of Justice.
The act also sends ninety- five cents ($. 95) of each civil and criminal court fee to the State Bar to fund the provisions of Section 4.1 of this act.
The fee for pro hac vice motions becomes effective October 1, 2004, and applies to all motions filed on or after that date. The sections that authorize that $. 95 of each civil and criminal court fee go to the State Bar become effective October 1, 2004, and apply to fees assessed or paid on or after that date. The section that creates a new Domestic Violence Victim Assistance Act became effective August 12, 2004.
Part V: Domestic Violence Advocates on Child Fatality Task Force. – The act adds two domestic violence advocates to the Child Fatality Task Force. This provision removes 2 public members from the task force and adds a representative from the North Carolina Domestic Violence Commission, appointed by the Speaker, and a representative from the North Carolina Coalition Against Domestic Violence, appointed by the President Pro Tempore. The public members being removed must complete their current terms.
This part became effective August 12, 2004.
Part VI: Study of Mental Health Services for Domestic Violence Victims. – The act requires the Department of Health and Human Services to study and develop a plan for serving clients of domestic violence programs with mental health and substance abuse service needs, including providing diagnostic and referral services.
The Department is required to make a preliminary report to the House Select Committee on Domestic Violence and the Joint Legislative Oversight Committee on Mental Health, Developmental Disabilities and Substance Abuse Services by October 1, 2004, and a final report to Mental Health Oversight and the General Assembly by January 15, 2005.
This part became effective August 12, 2004.
Chapter 3 Children and Families
Page 9
Part VII: Study of CLE Credit for Pro Bono Legal Representation. – The act requires the North Carolina State Bar, in cooperation with the North Carolina Bar Association, to study the issue of providing Continuing Legal Education ( CLE) credit to active attorneys for providing pro bono legal representation. The Bar is required to make a preliminary report to the House Select Committee on Domestic Violence by October 1, 2004, and a final report to the General Assembly by January 15, 2005.
This part became effective August 12, 2004.
Part VIII: Domestic Relationship Aggravating Factor. – The act amends the portion of the Criminal Procedure Act that applies to aggravating the sentence for a defendant who has been convicted of a felony offense. In felony sentencing, there are three ranges for the sentencing judge to determine a minimum sentence length.
Following is an example of the sentencing options for a person who has been convicted of a Class D felony, and who has no prior record points ( no prior offenses):
Aggravated Range: 64- 80 Months
Presumptive Range: 51- 64 Months
Mitigated Range: 38- 51 Months
If a court finds that aggravating or mitigating circumstances exist, it may depart from the presumptive range. If the aggravating factors present outweigh the mitigating factors that may be present, then the court may sentence in the aggravated range ( and vice versa). [ Note: If a firearm is used, displayed, or threatened to be used in the course of the offense, a separate statute provides that an additional 60 months may be added to the minimum sentence.]
One of the current statutory aggravating factors is set forth at G. S. 15A- 1340.16( d)( 15): " The defendant took advantage of a position of trust or confidence to commit the offense." The factor generally has been applied to defendants who have been in a fiduciary relationship with the victim, e. g., embezzled money from the victim.
The amendment clarifies that a defendant may also take advantage of the trust or confidence in a domestic relationship to commit the offense. " Domestic relationship" is not defined in the section; however, domestic violence is defined by statute [ G. S. 50B- 1( a)], and applies to those with whom the defendant has a " personal relationship." G. S. 14- 134.3, Domestic Criminal Trespass, has a more restrictive application. It applies to a present or former spouse, or when the parties had lived together as married. The State has the burden of proving that the defendant did, in fact, take advantage of the relationship to commit the offense. If the trial judge sentences in the aggravated ( or mitigated) range, then the judge must make written findings.
This part becomes effective December 1, 2004, and applies to offenses committed on or after that date.
Part IX: Create Strangulation Offense. – The act creates a new criminal offense: assault by strangulation. The offense is a Class H felony. The State has the burden of proving that the defendant attempted to strangle the victim, and cause physical injury by the act of strangulation. A first time offender would be subject to community punishment, intermediate punishment, or an active sentence. The presumptive range for an active sentence would be a minimum of 5- 6 months.
Although the term " serious bodily injury" is defined by statute, the terms " serious injury" and " physical injury" are not. Whether or not serious or physical injury has occurred is a jury determination, based upon common law.
This part becomes effective December 1, 2004, and applies to offenses committed on or after that date.
Part X: Amend Habitual Misdemeanor Assault Statute. – The act amends the habitual misdemeanor assault statute by:
􀂾 Reducing the number of necessary prior convictions from five to two;
􀂾 Allowing any prior assault conviction ( whether misdemeanor or felony) to count as a prior conviction, with the earlier conviction no more than 15 years prior to the current violation;
􀂾 Requiring that the assault involved physical injury to the victim; and
Chapter 3 Children and Families
Page 10
􀂾 Providing that a conviction of the statutory offense could not be used as a prior felony conviction for any other habitual offense statute.
Currently, an offender must have five prior misdemeanor convictions, two of which are assault convictions, to qualify as a habitual misdemeanor assault offender on a third assault conviction.
This part becomes effective December 1, 2004, and applies to offenses committed on or after that date. Prosecutions for offenses committed before the effective date of this part are not abated or affected by this part, and the statutory provisions that would be applicable but for this part remain applicable to those prosecutions.
Part XI: Domestic Violence Offense Tracking. – The act adds a new provision to provide for reporting offenses involving domestic violence. In cases involving assault or communicating a threat, the judge will determine whether there was a personal relationship between the offender and the victim. If so, there will be an annotation on the judgment to reflect that the case involved domestic violence. The clerk of court is required to make the appropriate entry into the offender's official criminal record to reflect that the offense involved domestic violence.
􀂾 The offender has to be in a personal relationship, as defined by statute.
􀂾 The entry will be made in all cases ( including a murder), where the underlying conduct was assaultive in nature.
􀂾 Any person making a lawful inquiry into a person's criminal history will be able to determine that the person has been convicted of an offense involving domestic violence.
If the judge determines that there was a personal relationship, then the judge is also required to determine whether the defendant should be required to comply with any special conditions of probation. Due to an ambiguity in the statutes, the new provision makes clear that the judge may ( but is not required to) sentence the defendant to house arrest with electronic monitoring.
This part is effective December 1, 2004, and applies to offenses committed on or after that date.
Part XII: Study of Misdemeanor Offense Classifications. – The act requires the North Carolina Sentencing and Policy Advisory Commission to study the classification of misdemeanor offenses, and to develop a system for classifying misdemeanor offenses based upon their severity. The Commission is required to examine the classification of assault offenses in relation to property offenses, crimes against society, and felony assault offenses. This section includes a finding by the General Assembly that the classification of assault offenses that cause serious injury as misdemeanors is inconsistent with the Commission's own classification of felonies based upon harm. The Commission is required to report to the 2005 General Assembly, 2005 Regular Session, with its findings and recommendations ( status and any completed recommendations). A final report is due to the 2005 General Assembly, 2006 Regular Session.
This part became effective August 12, 2004.
Part XIII: Warrantless Arrest for Violation of Pretrial Release Conditions. – The act amends the law to provide that if a law enforcement officer has probable cause to believe that a person has violated a condition of a pretrial release order in a domestic violence case, then the officer may arrest the defendant without a warrant. The arrest must be based upon a violation of one of the following provisions of a release order issued under G. S. 15A- 534.1( 2):
􀂾 That the defendant stay away from the home, school, business or place of employment of the alleged victim;
􀂾 That the defendant refrain from assaulting, beating, molesting, or wounding the alleged victim;
􀂾 That the defendant refrain from removing, damaging or injuring specifically identified property; or
􀂾 That the defendant may visit his or her child or children at times and places provided by the terms of any existing order entered by a judge.
Chapter 3 Children and Families
Page 11
A pretrial release order in a domestic violence case may be entered where the defendant has been arrested for assault on, communicating a threat to, domestic criminal trespass, or committing various felonies upon a spouse or former spouse, or upon someone with whom the defendant has lived as if married.
This part becomes effective December 1, 2004, and applies to offenses committed on or after that date.
Part XIV: Conform State Firearms Law to Federal Law. – The act amends North Carolina law to provide that a person who is a convicted felon may not possess any firearm. A " firearm" would be defined to parallel the definition of " firearm" under federal law. Current State law allows a convicted felon to own guns with a barrel length that is 18 inches or longer, or an overall length of 26 inches or more. It also allows convicted felons to possess any firearm in their home or " place of business".
This part becomes effective December 1, 2004, and applies to offenses committed on or after that date. Prosecutions for offenses committed before the effective date of this act are not abated or affected by this act, and the statutory provisions that would be applicable but for this act remain applicable to those prosecutions.
Part XV: Specifically Allow Cross Warrants. – The act clarifies that a judicial official cannot refuse to issue a warrant solely because a warrant had been issued for the arrest of another person in the same case.
This part became effective August 12, 2004.
Part XVI: Clarify Nurse's Privilege. – The act clarifies that if a written or printed record ( as opposed to live testimony) is otherwise admissible ( e. g., not excluded by the hearsay rule), then it may be entered into evidence. The nurse's privilege applies to any information that the nurse acquired that was necessary to render professional nursing services. If the information was not necessary to the rendering of services, then the nurse may be required to disclose the information. A presiding judge may compel the disclosure of evidence if the judge believes that its disclosure is necessary for a proper administration of justice.
The act also makes a technical change to add the nurse's privilege ( passed last Session), in the provision that excludes evidence of child abuse from the physician- patient privilege in juvenile proceedings.
This part becomes effective December 1, 2004.
Part XVII: Temporary Child Custody in Domestic Violence Hearings. – The act removes the current limitations under which courts may address temporary custody under Chapter 50B.
Custody under Chapter 50B at the ex parte stage. – The act amends the law regarding ex parte custody orders by allowing the court to enter orders at that stage if the child is exposed to a substantial risk of physical or emotional injury ( not " bodily" injury) or sexual abuse. This gives the court more discretion in deciding when a child is at risk.
The changes also require the court, if requested by the aggrieved party, to consider whether the other party should stay away from the child, or return the child to, or not remove the child from, the physical case of a parent or person in loco parentis. If the court decides the other party should have contact with the child, it is required to issue an order specifying the terms of contact to protect the safety of the child and the aggrieved party.
The same provisions apply to an authorized magistrate issuing an ex parte protective order.
Custody under Chapter 50B at a hearing following notice to the other party. – The act creates new requirements for the court when deciding whether to award temporary custody and visitation rights at a hearing under Chapter 50B after the other party has received notice or service of process. Rather than being discretionary, the court is required to consider the issue of custody upon the request of either party. However, it ultimately is within the discretion of the court to decide whether to actually grant an award of custody.
In determining whether custody and visitation should be awarded, the court is required to consider the following listed factors:
Chapter 3 Children and Families
Page 12
􀂾 Whether the child was exposed to a substantial risk of physical or emotional injury or sexual abuse.
􀂾 Whether the child was present during acts of domestic violence.
􀂾 Whether a weapon was used or threatened to be used during any act of domestic violence.
􀂾 Whether a party caused or attempted to cause serious bodily injury to the aggrieved party or the child.
􀂾 Whether a party placed the aggrieved party or the child in reasonable fear of imminent serious bodily injury.
􀂾 Whether a party caused an aggrieved party to engage involuntarily in sexual relations by force, threat, or duress.
􀂾 Whether there is a pattern of abuse against an aggrieved party or the child.
􀂾 Whether a party has abused or endangered the child during visitation.
􀂾 Whether a party has used visitation as an opportunity to abuse or harass the aggrieved party.
􀂾 Whether a party has improperly concealed or detained the child.
􀂾 Whether a party has otherwise acted in a manner that is not in the best interest of the child.
If the court decides to award temporary custody, then the court is also required to consider visitation. If ordering visitation, the court must provide for the safety and well being of both the child and the aggrieved party. The order must give specific parameters or conditions for the visitation, and may include any of the following:
􀂾 Exchange of the child in a protected setting;
􀂾 Supervised visitation;
􀂾 Treatment for the non- custodial parent;
􀂾 Restricting either parent from possessing or consuming controlled substances;
􀂾 Requiring the non- custodial parent to pay for supervised visitation;
􀂾 Prohibiting overnight visitation;
􀂾 Requiring a bond for the return of the child;
􀂾 Ordering an investigation or appointment of GAL for the child; and
􀂾 Any other conditions deemed necessary.
Duration of orders. – The duration of temporary custody orders entered under Chapter 50B are limited to a maximum of one year. While a protective order can generally be renewed indefinitely, any provisions awarding custody are not eligible for renewal beyond the initial one- year period. In addition, any subsequent custody order entered under Chapter 50 will supersede a temporary order entered under Chapter 50B.
Custody under Chapter 50. – G. S. 50- 13.2 is amended so that the new provisions set out in Chapter 50B, requiring courts to consider specific listed factors, apply in all custody cases where the court finds that domestic violence has occurred.
This part becomes effective October 1, 2004, and applies to actions filed on or after that date.
Part XVIII: Prohibit Employment Discrimination Against Domestic Violence Victims. – The act adds a section to Chapter 50B prohibiting employers from discriminating against an employee for taking reasonable time off to appear in court when he or she is seeking relief under Chapter 50B. The employee is required to follow the employer's usual leave procedures, unless an emergency prevents the employee from doing so. An employer may require documentation of the emergency that prevented advance notice of the time off and/ or of the need to appear in court.
This provision will be enforced by the Commissioner of Labor pursuant to Article 21 of Chapter 95 ( Retaliatory Employment Discrimination). Under Article 21, if an employee feels that a violation has occurred, he or she may file a complaint with the Commissioner, who will initiate an investigation. If the Commissioner determines that there is reason to believe the allegations are true, the Commissioner may try to resolve the alleged violation through informal methods. If the Chapter 3 Children and Families
Page 13
Commissioner is unsuccessful, he or she must file a civil action on behalf of the employee or issue a right to sue letter to the employee enabling the employee to bring a civil action. The court may award any or all of the following types of relief:
􀂾 An injunction to enjoin continued violation;
􀂾 Reinstatement of the employee;
􀂾 Reinstatement of full fringe benefits and seniority rights; and
􀂾 Compensation for lost wages, lost benefits, and other economic losses. ( If the court finds that the violation was willful, the court shall treble the amount of damages awarded.)
This part becomes effective October 1, 2004, and applies to actions filed on or after that date.
Part XIX: Privacy for 50B Intake. – The act requires the clerk of superior court, whenever feasible, to provide a private area for 50B complainants to fill out forms and make inquiries.
This part became effective August 12, 2004.
Part XX: Training for Judges and Court Personnel. – The act requests the North Carolina Supreme Court to adopt rules establishing minimum standards of education and training for district court judges in handling civil and criminal domestic violence cases.
The act also directs the Administrative Office of the Courts to study the issue of training for court personnel in the area of domestic violence, and to report its findings and recommendations to the 2005 Regular Session of the 2005 General Assembly.
This part became effective August 12, 2004. ( SS)
Child Restraint Systems Modified
S. L. 2004- 191 ( SB 1218). See Transportation.
Notice for Child Support Enforcement
S. L. 2004- 203, Sec. 42 ( HB 281, Sec. 42). See Civil Law and Procedure.
Studies
New/ Independent Studies/ Commissions
Smart Start Funding Study
S. L. 2004- 161, Part XXXV ( SB 1152, Part XXXV) establishes a Smart Start Funding Study Commission. The Commission shall study the funding of the North Carolina Partnership for Children, Inc. and shall consider the following:
􀂾 The current funding system of the North Carolina Partnership for Children, Inc.
􀂾 Strategies for achieving full funding and full service for North Carolina's young children and families.
􀂾 Funding equity among all counties and local partnerships.
􀂾 Any other information the Commission deems relevant.
Chapter 3 Children and Families
Page 14
The Commission is required to make its findings and recommendations in a final report to the 2005 General Assembly. The Commission will terminate upon filing its final report, or the
convening of the 2005 General Assembly the Commission.
This part became effective August 2, 2004. ( SA)
For a complete list of the studies and reports authorized by the 2004 Session of the
2003 General Assembly, please refer to the Appendix contained in this publication. Chapter 3 Children and Families
Page 15
Chapter 4
Civil Law and Procedure
Brenda Carter ( BC), Karen Cochrane- Brown ( KCB), Bill Gilkeson ( BG), Kory Goldsmith ( KG),
Trina Griffin ( TG), Tim Hovis ( TH), Robin Johnson ( RJ), Hal Pell ( HP), Wendy Graf Ray ( WGR), Walker Reagan ( WR), Steve Rose ( SR), and Susan Sitze ( SS).
Enacted Legislation
Increase Service of Process Fees
S. L. 2004- 113 ( HB 918) increases the fee for service of process in most civil actions from $ 5.00 to $ 15.00 and provides that at least 50% of the fees collected will be used by the county to ensure timely service of process within the county, which may include the hiring of additional law enforcement personnel upon the recommendation of the sheriff. The fee was last increased in 1990. No service of process fee is charged in actions related to domestic violence.
This act became effective September 1, 2004, and applies to fees assessed or collected on or after that date. ( TG)
Adjust Court Jurisdiction/ Amend Magistrate Term
S. L. 2004- 128, Secs. 4- 6 ( SB 577, Secs. 4- 6) make the following changes:
􀂾 Notice of Mechanics Lien on Driving While Impaired. – Sections 4 and 5 of the act amend the mechanics lien statutes relevant to storage charges for vehicles held under the driving while impaired forfeiture laws. This change requires a judge to include in any order releasing the vehicle from the seizure notice to the owner, that the owner must notify the Division of Motor Vehicles ( DMV) if they wish a hearing to contest the amount of the storage charges. If this notice is included in the order served on the owner, DMV is not able to serve notice otherwise on the owner of the amount of the lien by registered or certified mail, and if the owner does not request a hearing before DMV on the mechanics lien, the mechanic may proceed to sell the vehicle to satisfy the lien without having to serve notice of the sale by publication and without having a default hearing before the clerk.
These sections become effective October 1, 2004.
􀂾 Entry by Clerk of Default Judgment for Absolute Divorce. – Section 6 of the act authorizes the clerk of court to enter judgments by default in divorce actions when the only claim is for divorce, or divorce and resumption of a former name, and the defendant fails to answer the complaint, or answers the complaint by admitting to the allegations, and the defendant is not incompetent.
This section becomes effective October 1, 2004.
Section 1 of this act concerns increased jurisdiction by small claims court. For additional information, see Courts, Justice and Corrections.
Section 2 of this act concerns jurisdiction for revocation of probation for felony pleas heard in district court. For additional information, see Courts, Justice and Corrections.
Section 3 of this act concerns adding a drug treatment court program as intermediate punishment. For additional information, see Criminal Law and Procedure.
Sections 7 through 14 of this act concern termination of certain parental rights of persons convicted of first or second degree rape. For additional information, see Criminal Law and Procedure.
Section 15 of this act concerns prohibiting the threatening of a witness with the assertion or denial of parental rights. For additional information, see Criminal Law and Procedure.
Chapter 4 Civil Law and Procedure
Page 16
Sections 16 through 18 of this act concern an amendment to the North Carolina Constitution to extend the Magistrate term to four years. For additional information, see Constitution and Elections.
Section 19 of this act concerns the number, term, and appointment of magistrates. For additional information, see Courts, Justice and Corrections. ( WR)
Compensation of Trustees/ Other Fiduciaries
S. L. 2004- 139 ( SB 470). See Property, Trusts, and Estates.
Clarifications Regarding Mediation
S. L. 2004- 154, Secs. 1 and 2 ( SB 52, Secs. 1 and 2) make mediations regarding a personnel matter by The University of North Carolina or a constituent institution subject to the same rules as mediations in district or superior court matters. Evidence of the statements made or conduct occurring during the mediation would not be admissible as evidence in any proceeding on the same claim, except a claim to enforce a signed settlement agreement and the evidence would not be public record. A mediator, person training to become a mediator, or a mediation participant could not be required to testify regarding the mediation, except to attest to the signing of a settlement agreement. Finally, the drafting of a mediation summary would not be considered practicing law.
This section became effective August 2, 2004.
Sections 3 through 12 of this act concern open discovery in criminal cases. For additional information, see Criminal Law and Procedure. ( KG)
Venue for Juvenile Hearings
S. L. 2004- 155 ( HB 1665). See Courts, Justice & Corrections.
Crime Victims Financial Recovery Assistance Act
S. L. 2004- 159 ( HB 1519), which is a modified " Son of Sam" law, better enables crime victims to satisfy restitution orders and civil judgments entered against their offenders from the offender's assets by providing notice of the assets to the victims and by reviving the statute of limitations for a civil action once assets are discovered. More specifically, the act contains the following substantive provisions:
Declaration of Purpose. – The act declares as a matter of public policy that no person who commits a crime should thereafter gain monetary profit as the result of committing the crime. Furthermore, the act declares that convicted felons do not possess equitable title to profit from their crimes, and that the property is subject to seizure by the State for the benefit of the victims. The act identifies the compelling State interests, recognized as such by the United States Supreme Court, ensuring that persons convicted of crimes do not profit from those crimes and that victims of crime are compensated by those who have harmed them.
Notice of Profit from Crime or Funds of an Offender. – The act requires the following entities that knowingly contract for, pay, or agree to pay ( i) profit from crime, or ( ii) funds of an offender, to notify and submit a copy of the contract to the Commission:
􀂾 The contracting party;
􀂾 The State or a subdivision of the State whenever the payment or obligation to pay involves funds of an offender in excess of $ 10,000 that a superintendent, sheriff, or municipal officer receives or will receive on behalf of an inmate serving a sentence with the Department of Correction or a prisoner confined at a local correctional facility; and
Chapter 4 Civil Law and Procedure
Page 17
􀂾 The State or a subdivision of the State when it makes a payment or has an obligation to pay funds of an offender in excess of $ 10,000.
In all other instances where the payment or obligation to pay involves funds of an offender and the value of the funds exceeds or will exceed $ 10,000, the offender who receives or will receive the funds shall give written notice to the Commission.
" Profit from crime" is defined as any income, assets, or property generated from the commission of a crime for which the offender was convicted, including any income generated from the sale of crime memorabilia or obtained through unique knowledge during the commission of the crime. Crime memorabilia is defined as tangible property belonging to or that belonged to an offender prior to conviction, the value of which is increased by the offender's notoriety.
" Funds of an offender" is defined as all funds and property received from any source by an offender, excluding child support and earned income, where the offender is ( i) an inmate serving a sentence with the Department of Corrections or a prisoner confined at a local correctional facility or federal correctional institute, or ( ii) a person serving a sentence of probation, conditional discharge, or post- release supervision.
Penalty for Failure to Notify. – A person who willfully fails to provide notice as required would be subject to an assessment in the amount of the payment or obligation to pay, to be levied after notice and opportunity to be heard, plus a civil penalty in the amount of $ 1,000 or 10% of the obligation to pay, whichever is greater. Once collected, the assessment would be placed in escrow for the benefit of eligible persons who would be notified of their right to bring a civil action. The proceeds of the civil penalty would be remitted to the Civil Penalty and Forfeiture Fund. The act also provides for the return to the respondent of any unclaimed funds held in escrow upon the expiration of the three- year statute of limitations period and upon final determination of all pending claims.
Notice to Eligible Persons by Commission. – The Commission must notify all " eligible persons of the existence of the contract. An " eligible person" means ( 1) a victim of the crime for which the offender was convicted; ( 2) a surviving spouse, parent, or child of a deceased victim of the crime for which the offender was convicted; or ( 3) any other person dependent for the person's principal support upon a deceased victim of the crime for which the offender was convicted. However, " eligible person" does not include the offender or an accomplice to the offender.
Revival of Statute of Limitations; Notice of Civil Action. – If the eligible person has already obtained a civil judgment against the offender for damages arising out of the offense for which the offender was convicted, the eligible person may proceed to execute against those assets as provided for by current law. If the eligible person has not obtained a civil judgment, this act provides that the person has three years from the notice of the profit from crime or funds of the offender to bring a civil action for damages arising out of the offense for which the offender was convicted, even if the original statute of limitations for the cause of action has expired. The eligible person must submit a copy of the lawsuit to the Commission, which, in turn, would attempt to notify all other eligible persons of the lawsuit.
Responsibilities of and Authority of the Commission. –
Notice to Eligible Persons. – The Commission, upon receipt of notice of a contract or agreement to pay profit from crime or funds of an offender, must notify all known eligible victims of the existence of the contract or agreement.
Notice of Civil Action. – The Commission, upon notice of the filing of a civil action, must notify all other eligible victims of the filing.
Authority to Avoid Wasting of Assets. – The Commission has standing and, acting on its own behalf or on behalf of all eligible persons, has the right to apply for any and all provisional remedies that are also otherwise available to the plaintiff in the civil action, including attachment, injunction, constructive trust, and receivership.
Subrogation by Commission. – Claims on profit from crime or funds of an offender are subject to subrogation by the Crime Victims Compensation Fund.
Chapter 4 Civil Law and Procedure
Page 18
This act becomes effective October 1, 2004, and applies to contracts entered into on or after that date or to funds that accrue on or after that date. ( TG)
Prevent Workplace Violence
S. L. 2004- 166 ( SB 916), as amended by S. L. 2004- 199, Sec. 58 ( SB 1225, Sec. 58), creates a new procedure to allow an employer to obtain civil no- contact orders against a person who has harmed, threatened to harm, or stalked an employee of the employer.
Upon a finding that the employee has been the victim of unlawful conduct, the court is authorized to issue temporary or permanent orders restraining the conduct of the perpetrator. " Unlawful conduct" is defined to include bodily injury, attempted bodily injury, stalking and communicating a threat.
Permissible remedies include ordering the perpetrator not to:
􀂾 Visit, assault, molest or interfere with the employee or the employer at the workplace;
􀂾 Stalk the employee at the workplace;
􀂾 Harass, abuse or injure the employee or employer at the workplace; and
􀂾 Contact the employee or employer by any means at the workplace.
Temporary orders may be granted for periods of up to 10 days and may be issued ex parte and after normal business hours under certain circumstances. Permanent orders may be granted for periods of up to one year. All orders may be renewed. Violations of an order are punished as contempt of court.
This act becomes effective December 1, 2004. ( WR)
Strengthen Domestic Violence Laws
S. L. 2004- 186, Parts XVI, XVII, and XIX ( HB 1354, Parts XVI, XVII, and XIX) make changes to clarify nurse's privilege; to temporary child custody in domestic violence hearings and to privacy for 50B intake. The act is divided into the Parts listed below.
Part I: Domestic Violence Offender Treatment.
Part II: Domestic Violence Training for Law Enforcement.
Part III: Study of Anti- Violence Education in Schools and Training for School Personnel.
Part IV: Legal Services for Victims of Domestic Violence.
Part V: Domestic Violence Advocates on Child Fatality Task Force.
Part VI: Study of Mental Health Services for Domestic Violence Victims.
Part VII: Study of CLE Credit for Pro Bono Legal Representation.
Part VIII: Domestic Relationship Aggravating Factor.
Part IX: Create Strangulation Offense.
Part X: Amend Habitual Misdemeanor Assault Statute.
Part XI: Domestic Violence Offense Tracking.
Part XII: Study of Misdemeanor Offense Classifications.
Part XIII: Warrantless Arrest for Violation of Pretrial Release Conditions.
Part XIV: Conform State Firearms Law to Federal Law.
Part XV: Specifically Allow Cross Warrants.
Part XVI: Clarify Nurse's Privilege.
Part XVII: Temporary Child Custody in Domestic Violence Hearings.
Part XVIII: Prohibit Employment Discrimination Against Domestic Violence Victims.
Part XIX: Privacy for 50B Intake.
Part XX: Training for Judges and Court Personnel.
See Children and Families for the summary of the entire act.
Chapter 4 Civil Law and Procedure
Page 19
Create Civil No- Contact Protective Orders
S. L. 2004- 194 ( HB 951), as amended by S. L. 2004- 199, Sec. 50 ( SB 1225, Sec. 50), authorizes courts to issue protective orders, similar to domestic violence orders under Chapter 50B of the General Statutes, in situations where a person has been a victim of stalking or nonconsensual sexual conduct committed by a person with whom the victim is not in a domestic relationship.
Upon a finding that the victim has suffered unlawful conduct, the court is authorized to issue temporary or permanent orders restraining the conduct of the perpetrator. " Unlawful conduct" is defined to include nonconsensual sexual conduct and stalking. " Nonconsensual sexual conduct" is defined as any intentional or knowing touching, fondling or sexual penetration by a person, directly or through clothing, of the sexual organs of another for the purpose of sexual gratification or arousal where consent is not freely given. A " victim" is defined as a person against who unlawful conduct is committed other than in a situation where an action could be brought under the domestic violence laws.
Under this law, the victim, or a person acting on the behalf of an incompetent victim, may bring an action. The act allows an action under this law to be brought without paying filing fees to the clerk of court or service fees to the sheriff. The act restricts the admissibility of the victim's prior sexual activities to the same standards as permitted in criminal cases.
If the court finds that the victim suffered unlawful conduct, the court may order the perpetrator not to visit, assault, molest or otherwise interfere with the victim, and order the perpetrator to cease stalking, harassing, abusing, injuring, or contacting the victim by telephone, written communication or electronic means. The court may also order the perpetrator to stay away from the victim including prohibitions against entering the victim's residence, school, place of employment or other specified places at times when the victim is present.
Temporary orders may be granted for periods of up to 10 days and may be issued ex parte and after normal business hours under certain circumstances. Permanent orders may be granted for periods of up to one year. All orders may be renewed. Violations of an order are punished as contempt of court.
This act becomes effective December 1, 2004. ( WR)
Court Filing Requirements
S. L. 2004- 199, Sec. 5 ( SB 1225, Sec. 5) amends Rule 5( d) of the Rules of Civil Procedure to exempt subpoenas and objections to subpoenas from court filing requirements in civil actions. Changes made in 2003 expanding notice requirements to parties in civil actions inadvertently required these documents to also be filed in the court files.
This section becomes effective October 1, 2004, and applies to all pending cases and cases filed on or after that date. ( RJ)
Repeal Statute of Limitations for Challenge to Presumption of Ownership of Abandoned Railroad Easement
S. L. 2004- 203, Sec. 14 ( HB 281, Sec. 14) repeals the statute of limitations currently required for persons who claim ownership contrary to the presumption that upon abandonment of a railroad easement, all right, title and interest in that land is presumed vested in persons who own lots or parcels of land adjacent to the abandoned easement.
This section became effective August 17, 2004. ( RJ)
Chapter 4 Civil Law and Procedure
Page 20
Notice for Child Support Enforcement
S. L. 2004- 203, Sec. 42 ( HB 281, Sec. 42) amends the law governing agreements between the Department of Health and Human Services and financial institutions for the purpose of facilitating the enforcement of child support obligations. This section allows a financial institution to agree with the Child Support Enforcement Agency that notice of levies on bank accounts for child support arrears may be sent to the institution in a manner different from formal service under Rule 4 of the Rules of Civil Procedure if the institution agrees in writing to a different method before notice of the service. This would allow the institution to have the notice sent directly to the appropriate department and would allow the notice to be sent by email or fax.
This section became effective August 17, 2004. ( RJ)
For a complete list of the studies and reports authorized by the 2004 Session of the
2003 General Assembly, please refer to the Appendix contained in this publication. Chapter 4 Civil Law and Procedure
Page 21
Chapter 5
Commercial Law and Consumer Protection
Karen Cochrane Brown ( KCB), Wendy Graf Ray ( WGR), Tim Hovis ( TH),
Walker Reagan ( WR), and Steve Rose ( SR)
Enacted Legislation
Notice Period for Sales and Use Tax Refunds
S. L. 2004- 22 ( HB 1448). See Finance.
Emergency Funding/ Continuing Provisions
S. L. 2004- 88 ( HB 1352). See Finance.
Limit Use of Impervious Parking Surfaces for Sale of Nursery Stock
S. L. 2004- 124, Sec. 6.29 ( HB 1414, Sec. 6.29). See Environment and Natural Resources.
Regional Partnerships Vision Plans
S. L. 2004- 124, Sec. 13.6 ( HB 1414, Sec. 13.6) appropriates $ 1,750,000 to the North Carolina Partnership for Economic Development Inc. to be equally allocated to seven regional economic development partnerships for development and implementation of strategic economic development plans. In developing and implementing these plans, the partnerships must:
􀂾 Perform a comprehensive study of the region's resources and existing businesses located in the region to determine what business clusters exist and the boundaries of those clusters, to develop ways to strengthen those clusters, and to determine in what areas the region has a competitive advantage that could lead to the development of future clusters.
􀂾 Ensure that the benefits of the economic development plan are widely dispersed and that the plan provides real opportunities in rural areas as well as in urban and suburban areas.
􀂾 Develop focused and targeted economic development initiatives related to the recruitment and development of new businesses and the retention of existing businesses.
􀂾 Provide a mechanism for continuous monitoring of the regional economy and competitiveness indicators and for updating the strategic economic development plan to take account of changing economic conditions.
􀂾 Recommend infrastructure investments to meet the region's current and anticipated future needs.
􀂾 Integrate the North Carolina Community College System and The University of North Carolina into economic development efforts and planning.
􀂾 Create leadership networks that span the public and private sectors and that facilitate communication within clusters, between members of complementary clusters, and between members of the public and private sectors.
Chapter 5 Commercial Law and Consumer Protection
Page 22
The section also repeals S. L. 2002- 126, Sec. 8.3 which directed the State Board of Community Colleges, the Board of Governors of The University of North Carolina, and the Department of Commerce, in conjunction with the North Carolina Board of Economic Development and the seven regional economic development commissions to adopt a joint policy that required the development of a five- year vision plan for each of the economic development regions in the State.
This section became effective July 1, 2004. ( TM)
Transfer Business License Information Office Functions and Duties to the Department of Commerce
S. L. 2004- 124, Sec. 13.9A ( HB 1414, Sec. 13.9A). See State Government.
Housing Finance Agency Shall Create the North Carolina Home Protection Pilot Program and Loan Fund in Order to Assist North Carolina Workers Who Have Lost Jobs as a Result of Changing Economic Conditions in North Carolina When the Workers are in Need of Temporary Assistance to Avoid Losing Their Homes to Foreclosure
S. L. 2004- 124, Sec. 20A. 1 ( HB 1414, Sec. 20A. 1) directs the North Carolina Housing Finance Agency to develop and administer the North Carolina Home Protection Pilot Program and Loan Fund ( Program) to assist North Carolina workers who have lost jobs as a result of changing economic conditions and are in need of assistance to avoid losing their homes to foreclosure. The Agency is also authorized to make loans secured by liens on residential property, fund nonprofit counseling agencies that assist in implementing the Program, and develop and fund enhanced methods by which workers are notified of foreclosure mitigation services and the availability of loans from the Agency. The Agency must report to the General Assembly on the effectiveness of the Program no later than May 1, 2005.
The North Carolina Housing Finance Agency is further directed to convene meetings of experts to study the problem of increasing foreclosure filings statewide, possible improvements to the laws regarding foreclosure procedures, and the benefits and feasibility of creating a foreclosure avoidance loan fund. The Agency must report its recommendations to the General Assembly no later than May 1, 2005.
The section also provides certain protections to mortgagors who apply for loan assistance under this provision. Mortgagees are prohibited from:
􀂾 Accelerating the maturity of a mortgage obligation;
􀂾 Commencing or continuing any legal action, including foreclosure;
􀂾 Taking possession of any security of the mortgagor;
􀂾 Procuring or receiving a deed in lieu of foreclosure;
􀂾 Entering judgment by confession pursuant to a note accompanying a mortgage; and
􀂾 Proceeding to enforce the mortgage obligation for a period of 120 days after filing of the application.
The Agency must notify the mortgagee within five business days of its receipt of an application.
The Agency is exempt from rulemaking under the Administrative Procedure Act solely with respect to adopting procedures for qualifying for assistance under the pilot program. However, the Agency must publish the procedures in the North Carolina Register for at least 30 days, hold at least one public hearing, and accept oral and written comments on the procedures.
This section became effective July 1, 2004. ( KCB)
Chapter 5 Commercial Law and Consumer Protection
Page 23
Monetary Comp/ Outdoor Advertising
S. L. 2004- 152 ( HB 1213). See Local Government.
Tanning Salons/ Restrictions on Use
S. L. 2004- 157 ( SB 657) requires operators of tanning equipment and owners of tanning facilities to comply or ensure compliance with the following:
􀂾 Provide a warning statement to each consumer defining the potential hazards and consequences of exposure to ultraviolet radiation. Before a consumer's initial use of the equipment, the operator must obtain the consumer's signature on the warning statement.
􀂾 Prohibit the use of tanning equipment by persons 13 years of age or younger without a written prescription from the person's medical physician specifying the nature of the medical condition requiring treatment, the number of visits, and the time of exposure for each visit.
􀂾 Prohibit claims or the distribution of promotional materials claiming that the use of tanning equipment is safe or free from risk or will result in medical or health benefits.
The Radiation Protection Commission is authorized to adopt rules implementing the act. Rules adopted pursuant to the act are enforced by the Department of Health and Human Services and are in addition to existing rules and regulations that do not conflict with the act.
The act also defines the terms " consumer," " tanning facility," and " tanning equipment". This act becomes effective October 1, 2004. ( TH)
Revise Banking Laws of North Carolina
S. L. 2004- 171 ( SB 676) makes technical and clarifying changes to the banking laws of the State. Many of the changes are intended to maintain competitive equality among banks, regardless of whether they are chartered by North Carolina, another state or the federal government. The act also makes several changes to the Mortgage Lending Act to enhance the Commissioner of Banks' enforcement authority.
Additionally, the act authorizes the Legislative Research Commission to study whether more comprehensive changes to the banking laws are warranted. The Commission is required to make recommendations to the 2005 General Assembly, prior to the convening of the 2006 Regular Session.
This act becomes effective October 1, 2004, and applies to acts occurring and transactions or agreements entered into on or after that date. ( KCB)
Repeal UCC Article on Bulk Transfers.
S. L. 2004- 190 ( SB 230) repeals Article 6 of Chapter 25 of the General Statutes – Bulk Transfers of the Uniform Commercial Code, and makes conforming changes to other statutes. Article 6 required that prior to the bulk sale of inventory of businesses, notice must be given to all potential creditors in order to be assured of clear title to the inventory. More recent changes in recording security interests, credit reporting and the ability to get jurisdiction to collect debts have made Article 6 unnecessary. North Carolina joins 44 other states that have repealed Article 6.
This act becomes effective January 1, 2005. ( WR)
Chapter 5 Commercial Law and Consumer Protection
Page 24
Studies
Legislative Research Commission
Regulating Ticket Brokers
S. L. 2004- 161, Sec. 2.1( 1) b ( SB 1152, Sec. 2.1( 1) b) authorizes the Legislative Research Commission to study the effectiveness of the regulation of ticket brokers and address any issues that relate to the registration of ticket brokers.
The Commission may report its findings, together with any recommended legislation to the 2005 General Assembly.
This section became effective August 2, 2004. ( KCB)
Debt Collection Practices
S. L. 2004- 161, Sec. 2.1( 3) ( SB 1152, Sec. 2.1( 3)) authorizes the Legislative Research Commission to study current debt collection practices in order to determine how to minimize mistakes in correctly identifying debtors and what remedies should be available for persons wrongly identified as debtors.
The Commission may report its findings, together with any recommended legislation to the 2005 General Assembly.
This section became effective August 2, 2004. ( KCB)
Pawnbrokers Study
S. L. 2004- 161, Sec. 2.1( d) ( SB 1152, Sec. 2.1( d)) authorizes the Legislative Research Commission to study the laws regulating pawnbrokers and those non- regulated retail outlets engaging in similar business and acting as pawnbrokers. If undertaken by the Commission, the Commission may examine how the following procedures would impact pawnbrokers, non- regulated retail outlets, and existing law. The Commission may also examine how the following modifications would more effectively aid in the recovery of stolen property:
􀂾 Picture identification of sellers or pledgers;
􀂾 Thumbprints on each pawn or sales receipt;
􀂾 Machine- printed or otherwise legible pawn and sales receipt;
􀂾 Requirements for time and date on pawn or sales receipts;
􀂾 Recordation of any visible owner- applied numbers or markings on property;
􀂾 Prohibition on receipt and sale of new property;
􀂾 Authorization of fees to support local pawnbroker- related law enforcement;
􀂾 Computerization of pawnshop records; and
􀂾 Requirement that pawnbroker records be made available to law enforcement.
The Legislative Research Commission may report its findings to the 2005 General Assembly.
This section became effective August 2, 2004. ( JHM)
Equity- Building Homes
S. L. 2004- 161, Sec. 2.1( k) ( SB 1152, Sec. 2.1( k)) authorizes the Legislative Research Commission to study methods to substantially increase the number of North Carolinians who own equity- building homes. The term " equity- building home" means a residential structure that will be the purchaser's primary residence and that meets the State and local building code standards. An
Chapter 5 Commercial Law and Consumer Protection
Page 25
equity- building home will also have characteristics that are likely to cause it to appreciate in value over time.
The Commission may report its findings, together with any recommended legislation to the 2005 General Assembly.
This section became effective August 2, 2004. ( KCB)
Revise Banking Laws of North Carolina
S. L. 2004- 171 ( SB 676). The Legislative Research Commission is authorized to study whether more comprehensive changes to the banking laws are warranted. For additional information, see summary under Enacted Legislation this chapter.
Referrals to Existing Commissions/ Committees
Electronic Recordation and Revision of Notary Laws
S. L. 2004- 161, Sec. 6.1 ( SB 1152, Sec. 6.1) directs the General Statutes Commission to study the issue of electronic recordation, specifically with regard to real property documents and other documents filed with the registers of deeds. The Commission must study methods for establishing uniform legal standards for the receipt, recordation, authentication, preservation, and retrieval of electronic documents.
The Commission must report its findings and recommendations and any legislative proposals to the 2005 General Assembly.
This section became effective August 2, 2004. ( KCB)
Uniform Unincorporated Nonprofit Association
S. L. 2004- 161, Sec. 7.1 ( SB 1152, Sec. 7.1) directs the General Statutes Commission to study the Uniform Unincorporated Nonprofit Association Act in consultation with interested parties and to report to the 2005 General Assembly on the Commission's recommendations and legislative proposals.
This section became effective August 2, 2004. ( KCB)
Referrals to Departments, Agencies, Etc.
Housing Finance Agency Shall Create the North Carolina Home Protection Pilot Program and Loan Fund in Order to Assist North Carolina Workers Who Have Lost Jobs As a Result of Changing Economic Conditions in North Carolina When the Workers Are in Need of Temporary Assistance to Avoid Losing Their Homes to Foreclosure
S. L. 2004- 124, Sec. 20A. 1 ( HB 1414, Sec. 20A. 1). The North Carolina Housing Finance Agency is directed to study various issues related to foreclosure. For additional information, see summary under Enacted Legislation this chapter. Chapter 5 Commercial Law and Consumer Protection
Page 26
Electronic Recordation and Revision of Notary Laws
S. L. 2004- 161, Sec. 6.2 ( SB 1152, Sec. 6.2) directs the Secretary of State to study the issue of amending the notary public laws in order to modernize and simplify their administration. The study must also address the issue of electronic notarization.
The Secretary must report any findings and recommendations, including legislative proposals to the 2005 General Assembly
This section became effective August 2, 2004. ( KCB)
Regional Partnerships Vision Plans
S. L. 2004- 124, Sec. 13.6 ( HB 1414, Sec. 13.6) appropriates $ 1,750,000 to the North Carolina Partnership for Economic Development Inc. to be equally allocated to seven regional economic development partnerships for development and implementation of strategic economic development plans. In developing and implementing these plans, the partnerships must:
􀂾 Perform a comprehensive study of the region's resources and existing businesses located in the region to determine what business clusters exist and the boundaries of those clusters, to develop ways to strengthen those clusters, and to determine in what areas the region has a competitive advantage that could lead to the development of future clusters.
􀂾 Ensure that the benefits of the economic development plan are widely dispersed and that the plan provides real opportunities in rural areas as well as in urban and suburban areas.
􀂾 Develop focused and targeted economic development initiatives related to the recruitment and development of new businesses and the retention of existing businesses.
􀂾 Provide a mechanism for continuous monitoring of the regional economy and competitiveness indicators and for updating the strategic economic development plan to take account of changing economic conditions.
􀂾 Recommend infrastructure investments to meet the region's current and anticipated future needs.
􀂾 Integrate the North Carolina Community College System and The University of North Carolina into economic development efforts and planning.
􀂾 Create leadership networks that span the public and private sectors and that facilitate communication within clusters, between members of complementary clusters, and between members of the public and private sectors.
This section also repeals S. L. 2002- 126, Sec. 8.3 which directed the State Board of Community Colleges, the Board of Governors of The University of North Carolina, and the Department of Commerce, in conjunction with the North Carolina Board of Economic Development and the seven regional economic development commission to adopt a joint policy that required the development of a five- year vision plan for each of the economic development regions in the State.
The section became effective July 1, 2004. ( TM)
For a complete list of the studies and reports authorized by the 2004 Session of the
2003 General Assembly, please refer to the Appendix contained in this publication. Chapter 5 Commercial Law and Consumer Protection
Page 27
Chapter 6
Constitution and Elections
Erika Churchill ( EC) and Bill Gilkeson ( BG)
Note: For legislation affecting voting, the legislation cannot be implemented until it has received approval from the United States Department of Justice under Section 5 of the Voting Rights Act of 1965. Approval is most commonly obtained administratively from the United State Attorney General. This requirement applies to legislation affecting any of the 40 North Carolina counties covered by Section 5, including all statewide legislation. Unless otherwise indicated, the effective date stated is the effective date as it is in the legislation. It may be that Section 5 Voting Rights Act approval has not yet been obtained, and therefore the act cannot be implemented until such approval is forthcoming.
Enacted Legislation
House Redistricting Plan
S. L. 2003- 434, 2003 Extra Session ( HB 3, 2003 Extra Session) establishes districts for the North Carolina Senate and House and makes related changes to the election laws. For additional information on redistricting in North Carolina, see the 2003 Redistricting Guide, Fourth Ediion, Corrected Copy, and the 2002 Summaries of Substanive Ratified Legislation.
t
t
Briefly, the events in the year prior to the enactment of S. L. 2003- 434 are:
􀂾 November 5, 2002: General election held in North Carolina. In the Senate, the Democratic Party retains control with 28 of the 50 seats. In the House, the Republican Party gains control with 61 of the 120 seats.
􀂾 March 10, 2003: The North Carolina Supreme Court hears oral arguments in the appeal of May 31, 2002, trial court order in Stephenson v. Bartlett.
􀂾 March 14, 2003: The North Carolina Supreme Court orders trial court Judge Knox Jenkins to provide detailed findings of fact and conclusions of law to support his decision to hold Sutton 5 and Senate Fewer Divided Counties unconstitutional in Stephenson v. Bartlett.
􀂾 April 17, 2003: Judge Jenkins responds to the North Carolina Supreme Court in the Stephenson matter by submitting additional findings of fact and conclusions of law.
􀂾 July 16, 2003: The North Carolina Supreme Court issues an opinion affirming Judge Jenkins's May 31, 2002, order holding Sutton 5 and Senate Fewer Divided Counties unconstitutional, thereby triggering the need for the General Assembly to enact new districting plans for the House and Senate.
􀂾 November 24, 2003: General Assembly convenes in Extra Session to enact new House and Senate districting plans.
􀂾 November 25, 2003: HB 3 is ratified and signed by Governor Easley. The act became Ch. S. L. 2003- 434 Extra Session.
The act sets forth new district lines for the North Carolina House and the North Carolina Senate. Maps of the districts can be obtained by contacting the Research Division. The act also contains the following:
􀂾 Grants authority to the State Board of Elections to delay the primary election for the 2004 election cycle, if needed; the ability to adopt temporary rules as needed to accomplish that election; and made other conforming changes. ( The State Board of Elections delayed the primary until July 20, 2004.)
Chapter 6 Constitution and Elections
Page 28
􀂾 Amends the General Statutes to provide that if a primary date is delayed for the State House or State Senate, then all primaries must be held on the same day.
􀂾 Amends the General Statutes to provide for a three judge panel for redistricting challenges as follows:
• Any redistricting challenge to State legislative or congressional districts must be filed in Wake County Superior Court.
• Upon filing of the redistricting challenge, the Chief Justice of the Supreme Court is to be notified, and the Chief Justice is to appoint a three judge panel to hear the action.
• The three judge panel appointed by the Chief Justice is to consist of the senior resident superior court judge of Wake County, one resident superior court judge from the First through Fourth Judicial Divisions, and one resident superior court judge from the Fifth through Eighth Judicial Divisions. No member of the panel may be a former member of the General Assembly.
􀂾 Amends the General Statutes to provide that:
• Any order declaring unconstitutional, or otherwise invalid, any redistricting act of the General Assembly must find with specificity all facts supporting the declaration.
• The General Assembly must first be given an opportunity to remedy any defects in a redistricting act before a court may substitute its redistricting plan.
• Appeal of redistricting challenges is directly to the North Carolina Supreme Court.
• The Attorney General seeks pre- clearance under Section 5 of the Voting Rights Act for acts of the General Assembly that district State legislative or congressional districts.
• The ban on moving precinct lines would be extended until December 31, 2004.
This act became effective November 25, 2003, and the United States Department of Justice issued a letter on March 31, 2004, stating they would not object to the implementation of the plans. ( EC)
Constitutional Limits
S. L. 2004- 125 ( HB 737) parallels the federal law regarding reporting of spending for " electioneering communications" during federal campaigns elections, applying similar requirements for elected statewide State offices and General Assembly seats.
The act requires that every individual, committee, association, or any other organization or group of individuals that makes a disbursement for the direct costs of producing and airing electioneering communications in an aggregate amount in excess of ten thousand dollars ($ 10,000) during any calendar year must, within 24 hours of each disclosure date, file with the State Board of Elections a statement containing the following information:
􀂾 The identification of the entity making the disbursement, of any entity sharing or exercising direction or control over the activities of that entity, and of the custodian of the books and accounts of the entity making the disbursement;
􀂾 The principal place of business of the entity making the disbursement if the entity is not an individual;
􀂾 The amount of each disbursement of more than $ 1,000 during the period covered by the statement and the identification of the entity to which the disbursement was made;
􀂾 The elections to which the electioneering communications pertain and the names, if known, of the candidates identified or to be identified;
􀂾 If the disbursements were paid out of a segregated bank account that consists of funds contributed solely by individuals directly to that account for electioneering communications, the names and addresses of all contributors who contributed an
Chapter 6 Constitution and Elections
Page 29
aggregate amount of more than $ 1,000 during the period beginning on the first day of the preceding calendar year and ending on the disclosure date; and
􀂾 If the disbursements were paid out of funds not in a segregated bank account that consist of funds contributed solely by individuals directly to that account for electioneering communications, the names and addresses of all contributors who contributed an aggregate amount of more than one thousand dollars ($ 1,000) to the entity making the disbursement during the period beginning on the first day of the preceding calendar year and ending on the disclosure date.
The act defines the term " electioneering communication" as follows:
􀂾 Any broadcast, cable, or satellite communication that has all the following characteristics:
• Refers to a clearly identified candidate for a statewide office or the General Assembly;
• Is made within one of the following time periods:
1. 60 days before a general or special election for the office sought by the candidate,
2. 30 days before a primary election or a convention of a political party that has authority to nominate a candidate for the office sought by the candidate; and
• Is targeted to the relevant electorate.
􀂾 Any mass mailing or telephone bank that has all the following characteristics:
• Refers to a clearly identified candidate for a statewide office or the General Assembly;
• Is made within one of the following time periods:
1. 60 days before a general or special election for the office sought by the candidate, or
2. 30 days before a primary election or a convention of a political party that has authority to nominate a candidate for the office sought by the candidate; and
• Is targeted to the relevant electorate.
The act excepts both radio/ TV provision and mass mail/ phone bank communications made during a session of the General Assembly that urge the audience to communicate with a legislator or legislators concerning that piece of legislation. The act also provides that electioneering communications that are coordinated with a candidate or party are contributions, and are subject to the limits and bans of the regular North Carolina Campaign Finance Act ( NCCFA), and makes conforming changes to the NCCFA.
This act became effective July 20, 2004, and criminal penalties are not applicable until October 1, 2004. The United States Department of Justice issued a letter on August 26, 2004, stating they do not object to the implementation of the act. ( EC)
Election Law Changes
S. L. 2004- 127 ( HB 1119) contains a number of purely technical changes to the election laws, plus several substantive changes. The main substantive changes are as follows:
Precinct Boundaries and Names. – Under existing law, the county boards of elections have the basic authority to establish and change precinct boundaries, so long as the boundaries follow Census block lines, and exceptions may be allowed to the Census block rule. Until Dec. 31, 2004, a freeze has been placed on precinct boundary changes. Current law gives counties a free hand in how they can name precincts. The bill lifts the boundary freeze 4 ½ months early – on August 15, 2004, but at that time imposes a stricter rule for counties in how they can change precinct boundaries. They may divide a precinct either while leaving the outer boundaries the same, or merge one or more precincts, leaving the outer boundaries the same. The only other way to change a precinct line would be to move a line that is not now
Chapter 6 Constitution and Elections
Page 30
on a Census block boundary to a Census block boundary. Since very few precinct lines are not on Census block lines, this third power would be rarely used. Precinct changes for the 2004 general election would have to be completed by Sept. 17, 2004. As for precinct names, the act prohibits a county from using a new precinct a name, that in the past has been used for a precinct for different territory. The State Board of Elections ( State Board) would be responsible for enforcing the requirement. The " recycling" of precinct names in certain counties has been a vexation for people who try to keep up with voter registration and election data. The duty to check to see if a name has been used in the past only goes back to January 1, 1999. Before that, the State Board does not have precinct names available electronically.
Change of Superior Court Judge District 14A in Durham. – The act makes a small boundary change in Superior Court District 14A in Durham County. The district would include a house into which the incumbent, Judge Orlando Hudson, plans to move. Judge Hudson is running for re- election this year unopposed.
Benchmark for number of signatures on petitions. – The act sets voter registration as of January 1st of the election year, as the benchmark for calculating the number of signatures needed on petition for unaffiliated candidacy. Prior law said an unaffiliated candidate must collect signatures from registered voters equal to certain percentages of registered voters as of " most recent" voter registration report by State Board. That was written when the State Board produced such a report twice a year. Now, with its statewide, computerized voter registration system, the State Board keeps constant track of number of registered voters, so the benchmark has become a moving target. This provision fixes the target at January 1.
Scanned documents. – The act allows transmission of voter registration forms and overseas absentee ballot applications by emailing a scanned document, as well as faxed, mailed, and in person transmission.
New party petition wording. – This act removes from the statutory wording of a new party petition the current language that the undersigned voters " INTEND TO ORGANIZE" the new party. A federal court indicated in 1995 in a lawsuit brought by Libertarians that the language might violate the First Amendment as an unreasonable burden on the rights of new- party organizers, but the court did not rule on the language then because the Libertarians presented no evidence that the language had hindered their efforts. The ACLU- NC says it has 30 affidavits produced by the Green Party from voters saying they would have signed a petition to admit the Green Party to the ballot except for the language on the petition saying they intended to organize the party. They said they did not intend to organize the party, but they did want to help it get on the ballot if all they had to do was sign the petition.
Birthdate privacy. – Currently the statute requires a voter to provide date of birth as an identifier. Election officials find it useful to distinguish many people with names like John Jones, some of whom live at the same address. The date of birth on a voter registration record is a public record. Some county boards of elections ( Durham, for example) make a voter's date of birth available on their websites through a search of the records, if you plug in the voter's name. The State Board of Elections provides date of birth and address on the voter records searchable on its website, but it only provides those items if the searcher already knows the date of birth. This section would make date of birth a confidential item not only on elections websites but also on voter registration records. Candidates, elected officials, and challenged voters would be exempted from the protection, as would any voter who waived the date- of- birth privacy. Disclosure of the age of any voter would not violate the date- of- birth confidentiality requirement. This section would become effective June 1, 2005.
This act became effective on July 26, 2004; except for the precinct changes, which become effective August 15, 2004, and apply to precincts established on or after that date; and the birth date privacy changes, which become effective June 1, 2005. ( BG)
Chapter 6 Constitution and Elections
Page 31
Adjust Court Juris./ Amend Magistrate Term
S. L. 2004- 128, Secs. 16- 18 ( SB 577, Secs. 16- 18) place a proposed constitutional amendment to change the terms of magistrates on the November 2, 2004 ballot. Under the current constitutional provision, all magistrates' terms are two years. Under the proposal, a magistrate's first term would be two years but subsequent terms would be four years. The amendment would also give the General Assembly discretion in determining how magistrate vacancies would be filled.
These sections became effective July 17, 2004.
Sections 1 and 2 of this act address jurisdictional issues in small claims courts and the superior courts. For additional information, see Courts, Justice and Corrections.
Section 3 of this act concerns adding a drug treatment court program as intermediate punishment. For additional information, see Criminal Law and Procedure.
Sections 4 and 5 of this act concern the notice of a mechanics lien for storage charges for vehicles held under the driving while impaired forfeiture laws. For additional information, see Civil Law and Procedure.
Section 6 of this act authorizes the clerk of court to enter judgments by default. For additional information, se Civil Law and Procedure.
Sections 7 through 14 of this act concern termination of certain parental rights of persons convicted of first or second degree rape. For additional information, see Criminal Law and Procedure.
Section 15 of this act concerns prohibiting the threatening of a witness with the assertion or denial of parental rights. For additional information, see Criminal Law and Procedure.
Section 19 of this act concerns the number, term, and appointment of magistrates and becomes effective only if the constitutional amendment is approved. For additional information, see Courts, Justice and Corrections. ( BG)
Clarify Who May Hear Elections Directors' Dismissal
S. L. 2004- 203, Sec. 58 ( HB 281, Sec. 58) amends G. S. 163- 35( b) to allow the State Board of Elections, by a vote of all the remaining members, to delegate to one or more of its members the authority to hear and decide on the dismissal of a county election director, whether that dismissal proceeding was initiated by the county board or by the State Board.
This section became effective August 17, 2004. ( EC)
Account Numbers Confidential Clarifications
S. L. 2004- 203, Sec. 59 ( HB 281, Sec. 59) amends G. S. 163- 278.7( b)( 7) to clarify that any account number included in any report required to be filed with the board under Article 22A of Chapter 163, Regulating Contributions and Expenditures in Political Campaigns, and filed after March 1, 2003, must be keep confidential. The " board" is the State Board of Elections for candidates for State, legislative, and judicial offices and the county or municipal board of elections for candidates for county and municipal offices.
This section became effective January 1, 2003. ( EC)
Judicial Campaign Reform Clarifications
S. L. 2004- 203, Sec. 60 ( HB 281, Sec. 60) amends the Judicial Campaign Reform Act to clarify the criteria that the State Board of Elections must use in establishing guidelines for permissible expenditures of public campaign funds. The act requires that the State Board of Chapter 6 Constitution and Elections
Page 32
Elections differentiate expenditures that reasonably further a candidate's campaign, from expenditures for personal use that would be incurred in the absence of the candidacy.
This section became effective August 17, 2004. ( EC)
Studies
New/ Independent Studies/ Commissions
Electronic Voting systems Study Commission
S. L. 2004- 161, Part XII ( SB 1152, Part XII) establishes the Electronic Voting Systems Study Commission. The Commission is to study whether direct record electronic ( DRE) voting systems should be prohibited in North Carolina unless each unit of the system produces a voter- verifiable paper record that is suitable for a recount or a manual audit and that is equivalent or superior to the paper record produced by a paper ballot system. The Commission will include nine members: four appointed by the President Pro Tempore of the Senate, four appointed by the Speaker of the House, and the Executive Director of the State Board of Elections. The President Pro Tempore's appointments must include a county commissioner, a county election director, and a person who has been an active advocate on the issue of prohibiting DRE equipment without voter- verifiable paper records. The Speaker's appointment must include a member of the State Board of Elections, a member of a county board of elections, and an expert on computer security. The Commission is required to report to the 2005 General Assembly when it convenes. Upon making its report, the Commission will terminate.
This section became effective August 2, 2004. ( BG)
For a complete list of the studies and reports authorized by the 2004 Session of the
2003 General Assembly, please refer to the Appendix contained in this publication. Chapter 6 Constitution and Elections
Page 33
Chapter 7
Courts, Justice and Corrections
Brenda Carter ( BC), Tim Hovis ( TH), and Hal Pell ( HP)
Enacted Legislation
Involuntary Commitment Warrant Classification
S. L. 2004- 23 ( HB 1366) amends several statutes related to involuntary commitment in Chapter 122C of the General Statutes, to clarify that a custody order related to involuntary commitment that is issued by a clerk of court, magistrate, or court is valid throughout the State.
This act became effective June 25, 2004. ( BC)
Mental Health Treatment Courts
S. L. 2004- 124, Sec. 10.27 ( HB 1414, Sec. 10.27) directs the Administrative Office of the Courts ( AOC) to establish pilot programs in judicial districts 15B ( Chatham), 26 ( Mecklenburg), and 28 ( Buncombe), that add a mental health treatment component to the existing drug treatment courts in those districts. The pilot programs will expand those courts into therapeutic court programs aimed at providing treatment to repeat adult offenders with needs for either mental health or substance abuse services. The AOC is to collaborate with the Department of Health and Human Services, Division of Mental Health, Developmental Disabilities, and Substance Abuse Services, on a plan for the structure of the court process, treatment services provided by area authorities or county programs and other appropriate mental health service providers, and administration of the pilot programs. The AOC is required to report to specified appropriations committees by March 1, 2005, on the implementation of the therapeutic treatment court pilot programs and the feasibility and desirability of expanding the existing drug treatment court program into a statewide therapeutic court program.
Funds appropriated for the 2004- 2005 fiscal year include: ( i) $ 36,161 to AOC to cover administrative costs and $ 20,000 to the Judicial Department for obtaining an independent evaluation of the effectiveness of the pilot programs and ( ii) $ 137,940 to the Department of Health and Human Services, Division of Mental Health, Developmental Disabilities, and Substance Abuse Services for mental health treatment services to repeat adult offenders within the targeted population for mental health, developmental disabilities, and substance abuse services. A county may appropriate county or other non- State funds to expand mental health services to adult repeat offenders served by the pilot programs.
This section became effective July 1, 2004. ( BC)
Collection of Worthless Check Funds
S. L. 2004- 124, Sec. 14.2 ( HB 1414, Sec. 14.2) authorizes the Judicial Department to use up to $ 500,000 in receipts collected from the Worthless Check Program to create up to 10 positions in district attorneys' offices that are establishing or expanding programs for the collection of worthless checks. The Judicial Department is to report to specified appropriations subcommittees of the General Assembly on implementation of the expansion by March 1, 2005.
This section became effective July 1, 2004. ( BC)
Chapter 7 Courts, Justice and Corrections
Page 34
Plan to Continue Drug Court Services
S. L. 2004- 124, Sec. 14.2B ( HB 1414, Sec. 14.2B) directs the Administrative Office of the Courts ( AOC) to develop a plan to continue providing drug treatment court services in districts currently offering those services through time- limited non- State funding. This plan is to include a long- range plan for provision of drug treatment court services in any district where feasible and needed. The AOC is to report on this plan to the Chairs of the House of Representatives and Senate Appropriations Subcommittees on Justice and Public Safety by March 1, 2005.
This section became effective July 1, 2004. ( BC)
Office of Indigent Defense Services/ Expansion Funds/ Juvenile Defender
S. L. 2004- 124, Sec. 14.3 ( HB 1414, Se

SUMMARIES OF SUBSTANTIVE
RATIFIED LEGISLATION
2003 GENERAL ASSEMBLY
2003 EXTRA SESSION
2003 SECOND EXTRA SESSION
2004 REGULAR SESSION
RESEARCH DIVISION
N. C. GENERAL ASSEMBLY
SEPTEMBER 2004
400 copies of this document were published at an estimated cost of or about $ 9.30 per copy.
September 2004
To the Members of the 2004 Session of the 2003 General Assembly:
This publication contains summaries of all substantive legislation of general applicability and certain local legislation having general import of the 2003 Extra Session, the 2003 Second Extra Session, and the 2004 Regular Session. Most local bills are not analyzed in this publication. Significant appropriations matters related to the subject area specified are also included. For an in- depth review of the appropriations and revenue process, please refer to Overview: Fiscal and Budgetary Actions, prepared by the Fiscal Research Division.
The document is organized alphabetically by subject areas. Where feasible, the subject area is further divided into subgroups. Each subject area also includes a listing of legislative, independent, and agency studies. This year we have included in the appendix a list of the studies and reports authorized by the 2004 Session of the 2003 General Assembly. A bill/ session law index listing the page number of each summary is at the end of the publication.
This document is the result of a combined effort by the following staff members of the Research Division: Sandra Alley, Dee Atkinson, Cindy Avrette, Dickie Brown, Brenda Carter, Drupti Chauhan, Erika Churchill, Karen Cochrane- Brown, Judy Collier, Tim Dodge, Bill Gilkeson, George Givens, Kory Goldsmith, Trina Griffin, Tim Hovis, Jeff Hudson, Shirley Iorio, Dianna Jessup, Robin Johnson, Sara Kamprath, Theresa Matula, Jennifer McGinnis, Joe Moore, Shawn Parker, Hal Pell, Giles S. Perry, Wendy Graf Ray, Walker Reagan, Barbara Riley, Steve Rose, and Susan Sitze. Theresa Matula is chief editor of this year’s publication, and Drupti Chauhan is co- editor. Shawn Parker and Lucy Anders of the Research Division also helped edit this document. The specific staff members contributing to each subject area are listed directly below the chapter heading for that area. Staff members' initials appear after their names and after each summary they contributed. If you would like further information regarding any legislation in the various summaries, please contact the Research Division Office at ( 919) 733- 2578.
This document is also available on the World Wide Web. Go to the General Assembly’s homepage at http:// www. ncga. state. nc. us. Click on " Legislative Publications." It is listed under Research. Each summary is hyperlinked to the final bill text, the bill history, and any applicable fiscal note.
It is hoped that this document will provide a useful source of information for the members of the General Assembly and the public in North Carolina. We would appreciate receiving any suggestions for this publication's improvement.
Yours truly,
Terrence D. Sullivan
Director of Research Guide to Staff Initials
( BC) Brenda Carter
( BG) Bill Gilkeson
( BR) Barbara Riley
( CA) Cindy Avrette
( DA) Dee Atkinson
( DB) Dickie Brown
( DC) Drupti Chauhan
( DJ) Dianna Jessup
( EC) Erika Churchill
( GG) George Givens
( GSP) Giles S. Perry
( HP) Hal Pell
( JC) Judy Collier
( JH) Jeff Hudson
( JM) Jennifer McGinnis
( JHM) Joe Moore
( KCB) Karen Cochrane- Brown
( KG) Kory Goldsmith
( RJ) Robin Johnson
( SA) Sandra Alley
( SI) Shirley Iorio
( SK) Sara Kamprath
( SP) Shawn Parker
( SR) Steve Rose
( SS) Susan Sitze
( TD) Tim Dodge
( TG) Trina Griffin
( TH) Tim Hovis
( TM) Theresa Matula
( WGR) Wendy Graf Ray
( WR) Walker Reagan
TABLE OF CONTENTS
CHAPTER 1: AGRICULTURE AND WILDLIFE................................................................... 1
ENACTED LEGISLATION.............................................................................................................. 1
STUDIES........................................................................................................................ ............ 3
Legislative Research Commission......................................................................................... 3
Referrals to Existing Commissions/ Committees.................................................................... 3
Referrals to Departments, Agencies, Etc............................................................................... 3
CHAPTER 2: ALCOHOLIC BEVERAGE CONTROL.......................................................... 4
ENACTED LEGISLATION.............................................................................................................. 4
STUDIES........................................................................................................................ ............ 5
Legislative Research Commission......................................................................................... 5
CHAPTER 3: CHILDREN AND FAMILIES............................................................................ 6
ENACTED LEGISLATION.............................................................................................................. 6
STUDIES........................................................................................................................ .......... 14
New/ Independent Studies/ Commissions............................................................................... 14
CHAPTER 4: CIVIL LAW AND PROCEDURE.................................................................... 16
ENACTED LEGISLATION............................................................................................................ 16
CHAPTER 5: COMMERCIAL LAW AND CONSUMER PROTECTION........................ 22
ENACTED LEGISLATION............................................................................................................ 22
STUDIES........................................................................................................................ .......... 25
Legislative Research Commission....................................................................................... 25
Referrals to Existing Commissions/ Committees.................................................................. 26
Referrals to Departments, Agencies, Etc............................................................................. 26
CHAPTER 6: CONSTITUTION AND ELECTIONS............................................................ 28
ENACTED LEGISLATION............................................................................................................ 28
STUDIES........................................................................................................................ .......... 33
New/ Independent Studies/ Commissions............................................................................... 33
CHAPTER 7: COURTS, JUSTICE AND CORRECTIONS.................................................. 34
ENACTED LEGISLATION............................................................................................................ 34
STUDIES........................................................................................................................ .......... 46
Legislative Research Commission....................................................................................... 46
Referrals to Existing Commissions/ Committees.................................................................. 46
Referrals to Departments, Agencies, Etc............................................................................. 47
CHAPTER 8: CRIMINAL LAW AND PROCEDURE.......................................................... 49
ENACTED LEGISLATION............................................................................................................ 49
STUDIES........................................................................................................................ .......... 55 i
Legislative Research Commission....................................................................................... 55
Referrals to Departments, Agencies, Etc............................................................................. 56
CHAPTER 9: EDUCATION..................................................................................................... 57
ENACTED LEGISLATION............................................................................................................ 57
Public Schools...................................................................................................................... 57
Higher Education................................................................................................................. 63
Community Colleges............................................................................................................ 63
Universities................................................................................................................... ...... 65
STUDIES........................................................................................................................ .......... 67
Legislative Research Commission....................................................................................... 67
New/ Independent Studies/ Commissions............................................................................... 68
Referrals to Existing Commissions/ Committees.................................................................. 68
Referrals to Departments, Agencies, Etc............................................................................. 69
CHAPTER 10: ENVIRONMENT AND NATURAL RESOURCES..................................... 73
ENACTED LEGISLATION............................................................................................................ 73
Coastal Development........................................................................................................... 73
Environmental Health.......................................................................................................... 74
Fisheries...................................................................................................................... ........ 75
Parks and Public Spaces...................................................................................................... 78
Underground Storage Tanks................................................................................................ 79
Water Quality/ Quantity/ Groundwater................................................................................. 81
Miscellaneous.................................................................................................................. ... 84
STUDIES........................................................................................................................ .......... 87
Legislative Research Commission....................................................................................... 87
New/ Independent Studies/ Commissions............................................................................... 87
Referrals to Existing Commissions/ Committees.................................................................. 87
Coastal Resources Commission........................................................................................... 87
Commission for Health Services.......................................................................................... 88
Environmental Review Commission.................................................................................... 88
Joint Legislative Commission on Seafood and Aquaculture................................................ 89
Joint Legislative Growth Strategies Oversight Committee.................................................. 89
Marine Fisheries Commission............................................................................................. 90
Referrals to Departments, Agencies, Etc............................................................................. 90
CHAPTER 11: FINANCE......................................................................................................... 92
ENACTED LEGISLATION............................................................................................................ 92
STUDIES........................................................................................................................ ........ 100
Legislative Research Commission..................................................................................... 100
Referrals to Existing Commissions/ Committees................................................................ 101
New/ Independent Studies/ Commissions............................................................................. 102
CHAPTER 12: HEALTH AND HUMAN SERVICES......................................................... 103
ENACTED LEGISLATION.......................................................................................................... 103
STUDIES........................................................................................................................ ........ 112 i i
Legislative Research Commission..................................................................................... 112
New/ Independent Studies/ Commissions............................................................................. 113
Referrals to Existing Commissions/ Committees................................................................ 113
Referrals to Departments, Agencies, Etc........................................................................... 115
CHAPTER 13: INSURANCE.................................................................................................. 117
ENACTED LEGISLATION.......................................................................................................... 117
STUDIES........................................................................................................................ ........ 119
Legislative Research Commission..................................................................................... 119
New/ Independent Studies/ Commissions............................................................................. 120
CHAPTER 14: LABOR AND EMPLOYMENT................................................................... 121
ENACTED LEGISLATION.......................................................................................................... 121
General Labor and Employment........................................................................................ 121
Governmental Employment................................................................................................ 125
State Health Plan............................................................................................................... 128
STUDIES........................................................................................................................ ........ 129
Legislative Research Commission..................................................................................... 129
New/ Independent Studies/ Commissions............................................................................. 130
Referrals to Existing Commissions/ Committees................................................................ 131
Referrals to Departments, Agencies, Etc........................................................................... 131
CHAPTER 15: LOCAL GOVERNMENT............................................................................. 133
ENACTED LEGISLATION.......................................................................................................... 133
STUDIES........................................................................................................................ ........ 135
CHAPTER 16: MILITARY, VETERANS' AND INDIAN AFFAIRS................................ 137
ENACTED LEGISLATION.......................................................................................................... 137
Military and Veterans' Affairs........................................................................................... 137
Indian Affairs..................................................................................................................... 138
STUDIES........................................................................................................................ ........ 138
New/ Independent Studies/ Commissions............................................................................. 138
CHAPTER 17: OCCUPATIONAL BOARDS AND LICENSING...................................... 140
ENACTED LEGISLATION.......................................................................................................... 140
STUDIES........................................................................................................................ ........ 144
Legislative Research Commission..................................................................................... 144
Referrals to Departments, Agencies, Etc........................................................................... 145
CHAPTER 18: PROPERTY, TRUSTS, AND ESTATES.................................................... 146
ENACTED LEGISLATION.......................................................................................................... 146
STUDIES........................................................................................................................ ........ 147
CHAPTER 19: RESOLUTIONS............................................................................................. 149
JOINT RESOLUTIONS............................................................................................................... 149 ii i
CHAPTER 20: RETIREMENT.............................................................................................. 151
ENACTED LEGISLATION.......................................................................................................... 151
STUDIES........................................................................................................................ ........ 154
Legislative Research Commission..................................................................................... 154
Referrals to Departments, Agencies, Etc........................................................................... 154
CHAPTER 21: SENIOR CITIZENS...................................................................................... 156
ENACTED LEGISLATION.......................................................................................................... 156
STUDIES........................................................................................................................ ........ 158
Legislative Research Commission..................................................................................... 158
New/ Independent Studies/ Commissions............................................................................. 158
Referrals to Existing Commissions/ Committees................................................................ 159
Referrals to Departments, Agencies, Etc........................................................................... 159
CHAPTER 22: STATE GOVERNMENT.............................................................................. 162
ENACTED LEGISLATION.......................................................................................................... 162
Agencies and Departments................................................................................................ 162
Boards and Commissions................................................................................................... 165
Budget Process and Use of State Funds............................................................................ 166
Capital Facilities and State Property................................................................................ 168
Parks and Recreation......................................................................................................... 170
Purchase and Contracts..................................................................................................... 170
Miscellaneous.................................................................................................................. . 171
STUDIES........................................................................................................................ ........ 173
Legislative Research Commission..................................................................................... 173
New/ Independent Studies/ Commissions............................................................................. 175
Referrals to Existing Commissions/ Committees................................................................ 176
Referrals to Departments, Agencies, Etc........................................................................... 177
CHAPTER 23: TECHNOLOGY............................................................................................. 179
ENACTED LEGISLATION.......................................................................................................... 179
STUDIES........................................................................................................................ ........ 181
CHAPTER 24: TRANSPORTATION.................................................................................... 182
ENACTED LEGISLATION.......................................................................................................... 182
Department of Transportation........................................................................................... 182
License Plates.................................................................................................................... 184
Motor Vehicle Law............................................................................................................. 185
Public Transportation and Rail......................................................................................... 188
Trucks......................................................................................................................... ....... 188
Miscellaneous.................................................................................................................. . 189
STUDIES........................................................................................................................ ........ 190
Legislative Research Commission..................................................................................... 190
New/ Independent Studies/ Commissions............................................................................. 190
Referrals to Existing Commissions/ Committees................................................................ 190
Referrals to Departments, Agencies, Etc........................................................................... 192 iv
CHAPTER 25: UTILITIES..................................................................................................... 193
ENACTED LEGISLATION.......................................................................................................... 193
STUDIES........................................................................................................................ ........ 193
Legislative Research Commission..................................................................................... 193
Independent Studies/ Commissions..................................................................................... 193
CHAPTER 26: VETOED LEGISLATION............................................................................ 194
APPENDIX: STUDIES AND REPORTS AUTHORIZED BY 2004 SESSION................. 195
INDEX.......................................................................................................................... .............. 227
v
Chapter 1
Agriculture and Wildlife
Erika Churchill ( EC) and Barbara Riley ( BR)
Enacted Legislation
Allow Family Business to Lease Farmland
S. L. 2004- 008 ( HB 1465). See Finance.
Funds for Farmland Preservation Projects
S. L. 2004- 124, Sec. 6.31 ( HB 1414, Sec. 6.31) provides that for fiscal year 2004- 2005 only, up to $ 4,100,000 may be allocated by the Board of Trustees of the Clean Water Management Trust Fund to match federal, State, local, and private farmland preservation and forestland preservation funds and to acquire permanent conservation easements on working farms and forests.
The section also directs the Department of Agriculture and Consumer Services ( Department) to prepare a master plan for farmland preservation in the State with the goal of preserving rural landscapes and promoting working farms as a base for the economic, environmental, and social interests of rural North Carolina. In preparing the plan, the Department is to review the Farmland Preservation Enabling Act and other conservation, rural, and economic development programs. The Department is required to report its findings no later than March 31, 2005, to the House Agriculture Committee and the Senate Committee on Agriculture, Environment and Natural Resources.
This section became effective July 1, 2004. ( BR)
Sale of Umstead Farm Dairy Herd And Use of Proceeds
S. L. 2004- 124, Sec. 11.1 ( HB 1414, Sec. 11.1) provides that the Department of Agriculture and Consumer Services may sell the dairy herd at the Umstead Farm Unit in Butner. The funds are to be placed in a non- reverting special revenue fund with the Department. The proceeds from the sale may be used only for the following:
􀂾 To relocate the milking parlor equipment and nutrition barn from Umstead Farm to the Piedmont Research Station;
􀂾 To purchase additional dairy animals to fully utilize the Piedmont Research Station;
􀂾 To purchase or construct grain and feed storage facilities and equipment and supplies necessary for dairy research at Department dairy units;
􀂾 To demolish or remove unneeded or obsolete dairy buildings at Umstead Farm or for the closure of any animal waste management system located at the Umstead Farm unit.
Beginning with the 2005- 2007 biennium, the special revenue fund will be included in the Governor's recommended budget.
This section became effective July 1, 2004. ( BR)
Accounting for Wildlife Resources Commission Revenue
S. L. 2004- 124, Sec. 12.4 ( HB 1414, Sec. 12.4). See State Government.
Chapter 1 Agriculture and Wildlife
Page 1
Wildlife Resources Commission Temporary Exemption of Surplus Property/ Recyclable Material Fee
S. L. 2004- 124, Sec. 12.5 ( HB 1414, Sec. 12.5). See State Government.
Cost Share Funds For Limited Resource Farmers Clarifications
S. L. 2004- 124, Sec. 12.6 ( HB 1414, Sec. 12.6) amends G. S. 143- 215.74( b)( 9) by adding to the definition of " limited resource farmer" the qualification that the farmer have an adjusted household income in each of the previous two years that is at or below the greater of the county median household income or two times the national poverty level.
This section became effective July 1, 2004. ( BR)
Phosphorous Nutrient Management/ Animal Feedlots
S. L. 2004- 176 ( HB 1112). See Environment and Natural Resources.
Amend Environmental Laws – 3/ Appointments
S. L. 2004- 195 ( SB 823). See Environment and Natural Resources.
Dog Day Care Facilities
S. L. 2004- 199, Sec. 12 ( SB 1225, Sec. 12) amends G. S. 19A- 24( 1) to clarify that dog day care facilities with a ratio of dogs to workers of not more than 10 to one are not subject to regulations applicable to boarding kennels with respect to separate runs for the dogs, so long as the dogs are not boarded overnight.
This section became effective August 17, 2004. ( EC)
Milk Commission Repealed
S. L. 2004- 199, Sec. 27 ( SB 1225, Sec. 27) repeals the Milk Commission in the Department of Commerce, and makes conforming amendments to that repeal.
This section became effective August 17, 2004 ( EC)
Animal Shelters
S. L. 2004- 199, Sec. 39 ( SB 1225, Sec. 39) amends G. S. 153A- 442 and G. S. 160A- 493 to require that animal shelters established, equipped, operated or maintained or contributed to by a county or city meet the same standards as animal shelters operated by private organizations regulated under Chapter 19A, Protection of Animals, by the Department of Agriculture.
This section became effective August 17, 2004. ( EC)
Chapter 1 Agriculture and Wildlife
Page 2
Studies
Legislative Research Commission
Agribusiness and Agricultural Teaching Fellows Study
S. L. 2004- 161, Sec. 2.1( 9) j ( SB 1152, Sec. 2.1( 9) j) authorizes the Legislative Research Commission to study agribusiness and agricultural teaching fellows. The Commission may report its findings, together with any recommended legislation, to the 2005 General Assembly upon its convening.
This section became effective August 2, 2004. ( BR)
Referrals to Existing Commissions/ Committees
Agriculture and Forestry Awareness Study Commission Studies
S. L. 2004- 161, Part XXX ( SB 1152, Part XXX) provides a list of topics that the Agriculture and Forestry Awareness Study Commission may study. These topics include:
􀂾 Agricultural commodity incentives.
􀂾 Food Safety and Security.
􀂾 Dairy Industry.
The Commission may report its findings, together with any recommended legislation, to the 2005 General Assembly upon its convening.
This part became effective August 2, 2004. ( BR)
Referrals to Departments, Agencies, Etc.
Study Operations, Funding And Efficiencies For Department Of Agriculture Research Stations
S. L. 2004- 124, Sec. 11.2 ( HB 1414, Sec. 11.2) directs the Department of Agriculture and Consumer Services ( Department) and the Agricultural Research Service at North Carolina State University, in consultation with the Fiscal Research Division, to study the 18 research stations within the Department and the differences in how the Department and the Agricultural Research Service fund and operate the stations, allocate federal funds for administration of the stations and the efforts of the two agencies to collaborate on providing necessary funding and management of the research stations. The Department and the Agricultural Research Service, in consultation with the Fiscal Research Division shall report to the House and Senate Appropriations Subcommittees on Natural and Economic Resources no later than December 15, 2004.
This section became effective July 1, 2004. ( BR)
For a complete list of the studies and reports authorized by the 2004 Session of the
2003 General Assembly, please refer to the Appendix contained in this publication. Chapter 1 Agriculture and Wildlife
Page 3
Chapter 2
Alcoholic Beverage Control
Dickie Brown ( DB), Brenda Carter ( BC), Hal Pell ( HP), and Susan Sitze ( SS)
Enacted Legislation
NC Vineyard Amendments
S. L. 2004- 135 ( SB 74) expands the definition of " unfortified" wine to permit unfortified wineries in this State to use brandy in the manufacturing process. The act amends the definition of " fortified" wine to include wine of more than 16% and no more than 24% alcohol by volume. The definition of " unfortified" wine is amended to include wine of 16% or less alcohol by volume. The act authorizes the holder of an unfortified winery permit to receive and sell at the winery unfortified wine produced under contract with the winery. The contract wine may also be sold at affiliated retail outlets of the winery located on or adjacent to the winery. ABC stores may continue to sell wine products that met the preexisting ( July 7, 2004) definition of fortified wine.
This act becomes effective October 1, 2004. ( BC)
Use of Alcohol in Culinary Classes
S. L. 2004- 199, Sec. 8 ( SB 1225, Sec. 8) permits the delivery to, and the possession or consumption of alcoholic beverages, by persons less than age 21 when under the direct supervision of an instructor in a culinary class that is part of established culinary curriculum at an accredited college or university.
This section became effective August 17, 2004. ( BC)
Tourism ABC Establishments
S. L. 2004- 199, Sec. 9 ( SB 1225, Sec. 9) authorizes tourism ABC establishments to sell on- premises fortified wine and mixed beverages without an election. Tourism ABC establishments include restaurants or hotels within 1.5 miles of a ramp of the Blue Ridge Parkway.
This section became effective August 17, 2004. ( BC)
Unfortified Wineries/ Retail Sales
S. L. 2004- 199, Sec. 11 ( SB 1225, Sec. 11) specifies that the authority for the holder of an unfortified winery permit to obtain retail permits to sell its wine at other locations in the State, applies only with regard to wine manufactured by the winery or, in limited circumstances, to wine produced under the winery's label from produce owned by the winery.
This section became effective August 17, 2004. ( BC)
Township ABC Elections
S. L. 2004- 203, Sec. 24 ( HB 281, Sec. 24) amends a recently enacted provision that authorizes a township to hold an ABC election if the township is located in a county where the population of all cities in the county, that have previously approved the sale of any kind of alcoholic beverages, comprises more than twenty percent ( 20%) of the total county population.
Chapter 2 Agriculture and Wildlife
Page 4
The act makes it clear that the provision applies only to malt beverage, unfortified wine, and mixed beverage elections. It does not authorize townships to hold ABC store elections.
This section became effective August 17, 2004. ( BC)
Registration Penalty for Malt Beverage & Wine Permits
S. L. 2004- 203, Sec. 25 ( HB 281, Sec. 25) provides for the revocation of malt beverage, fortified wine, and unfortified wine permits for failure to register and pay the required annual inspection fee, which is not refundable. The act also provides an exception to the statute that prohibits a person from obtaining a subsequent permit within a three- year period following a revocation; a revocation based solely on a permittee's failure to pay the annual registration and inspection fee will not result in the three- year disqualification.
This section became effective August 17, 2004. ( BC)
Retail Outlets for Small Breweries
S. L. 2004- 203, Sec. 29 ( HB 281, Sec. 29) allows a brewery selling fewer than 25,000 barrels produced by it per year to consumers at the brewery, to wholesalers, to retailers, and to exporters to also sell the malt beverages manufactured by the brewery at not more than three other locations in the State upon obtaining the appropriate retail permits. A brewery operating any additional retail location is required to also offer for sale at that location a reasonable selection of competitive malt beverage products.
This section became effective August 17, 2004. ( BC)
Studies
Legislative Research Commission
Alcoholic Beverage Control
S. L. 2004- 161, Sec. 2.1( 1) f ( SB 1152, Sec. 2.1( 1) f) authorizes the Legislative Research Commission ( LRC) to study the topic of Alcoholic Beverage Control. If the LRC decides to study the topic, it may report its findings, together with any recommended legislation, to the 2005 General Assembly upon its convening.
This section became effective August 3, 2004. ( BC)
For a complete list of the studies and reports authorized by the 2004 Session of the
2003 General Assembly, please refer to the Appendix contained in this publication. Alcoholic Beverage Control Agriculture and Wildlife
Page 5
Chapter 3
Children and Families
Sandra Alley ( SA), Drupti Chauhan ( DC), Erika Churchill ( EC),
Dianna Jessup ( DJ), and Wendy Graf Ray ( WGR)
Enacted Legislation
Centralize Criminal Record Check Functions
S. L. 2004- 124, Sec. 10.1 ( HB 1414, Sec. 10.1). See State Government.
TANF Benefit Implementation
S. L. 2004- 124, Sec. 10.19A ( HB 1414, Sec. 10.19A) amends the provision contained in the approved North Carolina Temporary Assistance for Needy Families State Plan FY 2003- 2005 that eliminated pay- after- performance as a benefit delivery method for two- parent families so that the provision will only be eliminated if the federal two- parent work participation rate is eliminated.
This section became effective July 1, 2004. ( SA)
IV- E Child Caring Institutions
S. L. 2004- 124, Sec. 10.19B ( HB 1414, Sec. 10.19B) requires the Department of Health and Human Services to work with the federal government and child caring institutions to ensure that adequate funds are available to support child caring institution operations.
This section became effective July 1, 2004. ( SA)
Early Intervention Reporting Requirement
S. L. 2004- 124, Sec. 10.29 ( HB 1414, Sec. 10.29) directs the Department of Health and Human Services, Division of Public Health, to track and report on the number of children referred to the Early Intervention Program by Department of Social Services abuse and neglect agents. The report must include the number and types of services provided to these children and the fiscal impact to the program. The report is due by January 30, 2005 and is to be submitted to the House of Representatives Appropriations Subcommittee on Health and Human Services, the Senate Appropriations Committee on Health and Human Services, and the Fiscal Research Division.
This section became effective July 1, 2004. ( DC)
Authorize Child Care Commission To Adopt Rules For Child Care Facilities For Medically Fragile Children
S. L. 2004- 124, Sec. 10.35 ( HB 1414, Sec. 10.35) expands the powers and duties of the Child Care Commission to include the adoption of rules for child care facilities that provide care for medically fragile children.
This section became effective July 1, 2004. ( DC)
Chapter 3 Children and Families
Page 6
Criminal History Record Checks for Local Child Care Centers
S. L. 2004- 124, Sec. 10.36 ( HB 1414, Sec. 10.36) requires the Division of Child Development to use lapsed salaries to create up to three additional temporary positions during fiscal year 2005 to eliminate the backlog in the conduct of criminal history record checks for local child care centers.
This section became effective July 1, 2004. ( EC)
Increase North Carolina Partnership for Children Board Membership
S. L. 2004- 124, Sec. 10.37 ( HB 1414, Sec. 10.37) increases the membership of the North Carolina Partnership for Children by one. The new member is the Director of the More at Four Pre- Kindergarten Program, or that person's designee.
This section became effective July 1, 2004. ( EC)
More at Four Program
S. L. 2004- 124, Sec. 10.38 ( HB 1414, Sec. 10.38) requires the More at Four Pre- Kindergarten Program ( More at Four) to review the number of slots filled by counties on a monthly basis and shift the unfilled slots to counties with waiting lists. Slots remaining unfilled as of January 30, 2005 will be transferred to the Division of Child Development to meet the needs of the waiting list for subsidized child care. The provision also requires the program to establish income eligibility requirements for the program not to exceed seventy- five percent ( 75%) of the State median income to make the program consistent with the child care subsidy requirements. Up to twenty percent ( 20%) of children enrolled in More at Four may have family incomes in excess of seventy- five percent ( 75%) of median income if they have other designated risk factors.
This section became effective July 1, 2004. ( DJ)
Agape of North Carolina, Inc./ State Funds Program
S. L. 2004- 124, Sec. 10.39 ( HB 1414, Sec. 10.39) requires the Division of Social Services to include Agape of North Carolina, Inc. ( Agape), on its list of member agencies eligible to receive funding from the State Funds Program. Agape is a licensed, private child- placing agency located in Greensboro. Agape will be reimbursed for allowable expenditures from the State Fund For Child Caring Institutions for the uncompensated cost of care. Funding will be based on the current funding methodology applied to other eligible providers that historically have been reimbursed for expenditures with funds from the State Funds Program.
This section became effective July 1, 2004. ( DJ)
Adjust New Court Jurisdiction/ Amend Magistrate Term
S. L. 2004- 128 ( SB 577) makes the changes indicated below.
Section 1 of this act concerns increased jurisdiction by small claims court. For additional information, see Courts, Justice and Corrections.
Section 2 of this act concerns jurisdiction for revocation of probation for felony pleas heard in district court. For additional information, see Courts, Justice and Corrections.
Section 3 of this act concerns adding a drug treatment court program as intermediate punishment. For additional information, see Criminal Law and Procedure.
Chapter 3 Children and Families
Page 7
Sections 4 and 5 of this act concern the notice of a mechanics lien for storage charges for vehicles held under the driving while impaired forfeiture laws. For additional information, see Civil Law and Procedure.
Section 6 of this act authorizes the clerk of court to enter judgments by default. For additional information, see Civil Law and Procedure.
Sections 7 through 14 of this act concern termination of certain parental rights of persons convicted of first or second degree rape. For additional information, see Criminal Law and Procedure.
Section 15 of this act concerns prohibiting the threatening of a witness with the assertion of denial of parental rights. For additional information, see Criminal Law and Procedure.
Sections 16 through 18 of this act concern an amendment to the North Carolina Constitution to extent the Magistrate term to four years. For additional information, see Constitution and Elections.
Section 19 of this act concerns the number, term, and appointment of magistrates. For additional information, see Courts, Justice and Corrections.
Prevent Workplace Violence
S. L. 2004- 165 ( SB 916). See Civil Law and Procedure.
Strengthen Domestic Violence Laws
S. L. 2004- 186 ( HB 1354) makes various changes to strengthen the laws against domestic violence and to provide additional assistance to domestic violence victims.
Part I: Domestic Violence Offender Treatment. – The act requires attendance and completion of an abuser treatment program while on probation if the court finds that the defendant is responsible for acts of domestic violence and there is a program reasonably available to the defendant. If the court makes those findings, the court must order the treatment as a regular condition of probation unless the court finds that it would not be in the best interest of justice.
The act also requires the Department of Correction to establish a domestic violence treatment program for offenders in the custody of the Department whose official record includes a finding by the court that the offender committed acts of domestic violence. The Department must ensure that those inmates complete the domestic violence treatment program prior to being released, unless other requirements deemed critical by the Department prevent program completion. If the inmate does not complete the program, the Department must document, in the inmate's official record, specific reasons why that inmate did not or was not able to complete the program.
This part is effective December 1, 2004 and applies to offenses committed on or after that date.
Part II: Domestic Violence Training for Law Enforcement. – The act requires the North Carolina Criminal Justice Education and Training Standards Commission and the North Carolina Sheriffs' Education and Training Standards Commission to establish minimum standards for training of law enforcement officers in domestic violence. The training standards shall be developed for entry- level employment, for in- service training, and for certification of instructors, and shall include training in response to, and investigation of, domestic violence cases, as well as training in investigation for evidence based prosecutions.
The Commissions must have the training in place no later than March 1, 2005 and must report to the General Assembly on or before March 1, 2005 on the exact standards implemented and the date they were implemented.
This part became effective August 12, 2004.
Chapter 3 Children and Families
Page 8
Part III: Study of Anti- Violence Education in Schools and Training for School Personnel. – The act requires the Department of Public Instruction, in collaboration with the State Board of Education, to study the issue of anti- violence programs in schools. The Department is directed to address several questions and to look at different programs used across the country.
The Department is required to issue a preliminary report to the House Select Committee on Domestic Violence and the Joint Legislative Oversight Committee by November 15, 2004, and a final report to Education Oversight and the General Assembly by January 15, 2005.
The act also requires the Department of Public Instruction, in collaboration with the State Board of Education, to study training for school personnel dealing with students who are victims of physical violence and mental or verbal abuse, particularly instances of domestic and relationship violence.
The Department is required to issue a preliminary report to the House Select Committee on Domestic Violence and the Joint Legislative Oversight Committee by November 15, 2004, and a final report to Education Oversight and the General Assembly by January 15, 2005.
This part became effective August 12, 2004.
Part IV: Legal Services for Victims of Domestic Violence. – The act creates a new Domestic Violence Victim Assistance Act to provide legal services to domestic violence victims. This section requires the North Carolina State Bar to disburse funds under this act to legal services organizations that provide legal services to domestic violence victims.
The funds are disbursed to the organizations based on the counties they serve, with each county receiving a fixed 20% amount and the remaining 80% of the funds distributed to the counties based on the rate of actions filed for 50B domestic violence protective orders in that county.
The act creates a $ 100 fee for pro hac vice motions in North Carolina. A pro hac vice occurs when an out of state attorney, who is not licensed to practice law in North Carolina, asks a North Carolina court to allow that attorney to appear in court in North Carolina for one particular case. Currently, North Carolina does not charge any fee for these motions, although many states do. The fees collected go to the General Court of Justice.
The act also sends ninety- five cents ($. 95) of each civil and criminal court fee to the State Bar to fund the provisions of Section 4.1 of this act.
The fee for pro hac vice motions becomes effective October 1, 2004, and applies to all motions filed on or after that date. The sections that authorize that $. 95 of each civil and criminal court fee go to the State Bar become effective October 1, 2004, and apply to fees assessed or paid on or after that date. The section that creates a new Domestic Violence Victim Assistance Act became effective August 12, 2004.
Part V: Domestic Violence Advocates on Child Fatality Task Force. – The act adds two domestic violence advocates to the Child Fatality Task Force. This provision removes 2 public members from the task force and adds a representative from the North Carolina Domestic Violence Commission, appointed by the Speaker, and a representative from the North Carolina Coalition Against Domestic Violence, appointed by the President Pro Tempore. The public members being removed must complete their current terms.
This part became effective August 12, 2004.
Part VI: Study of Mental Health Services for Domestic Violence Victims. – The act requires the Department of Health and Human Services to study and develop a plan for serving clients of domestic violence programs with mental health and substance abuse service needs, including providing diagnostic and referral services.
The Department is required to make a preliminary report to the House Select Committee on Domestic Violence and the Joint Legislative Oversight Committee on Mental Health, Developmental Disabilities and Substance Abuse Services by October 1, 2004, and a final report to Mental Health Oversight and the General Assembly by January 15, 2005.
This part became effective August 12, 2004.
Chapter 3 Children and Families
Page 9
Part VII: Study of CLE Credit for Pro Bono Legal Representation. – The act requires the North Carolina State Bar, in cooperation with the North Carolina Bar Association, to study the issue of providing Continuing Legal Education ( CLE) credit to active attorneys for providing pro bono legal representation. The Bar is required to make a preliminary report to the House Select Committee on Domestic Violence by October 1, 2004, and a final report to the General Assembly by January 15, 2005.
This part became effective August 12, 2004.
Part VIII: Domestic Relationship Aggravating Factor. – The act amends the portion of the Criminal Procedure Act that applies to aggravating the sentence for a defendant who has been convicted of a felony offense. In felony sentencing, there are three ranges for the sentencing judge to determine a minimum sentence length.
Following is an example of the sentencing options for a person who has been convicted of a Class D felony, and who has no prior record points ( no prior offenses):
Aggravated Range: 64- 80 Months
Presumptive Range: 51- 64 Months
Mitigated Range: 38- 51 Months
If a court finds that aggravating or mitigating circumstances exist, it may depart from the presumptive range. If the aggravating factors present outweigh the mitigating factors that may be present, then the court may sentence in the aggravated range ( and vice versa). [ Note: If a firearm is used, displayed, or threatened to be used in the course of the offense, a separate statute provides that an additional 60 months may be added to the minimum sentence.]
One of the current statutory aggravating factors is set forth at G. S. 15A- 1340.16( d)( 15): " The defendant took advantage of a position of trust or confidence to commit the offense." The factor generally has been applied to defendants who have been in a fiduciary relationship with the victim, e. g., embezzled money from the victim.
The amendment clarifies that a defendant may also take advantage of the trust or confidence in a domestic relationship to commit the offense. " Domestic relationship" is not defined in the section; however, domestic violence is defined by statute [ G. S. 50B- 1( a)], and applies to those with whom the defendant has a " personal relationship." G. S. 14- 134.3, Domestic Criminal Trespass, has a more restrictive application. It applies to a present or former spouse, or when the parties had lived together as married. The State has the burden of proving that the defendant did, in fact, take advantage of the relationship to commit the offense. If the trial judge sentences in the aggravated ( or mitigated) range, then the judge must make written findings.
This part becomes effective December 1, 2004, and applies to offenses committed on or after that date.
Part IX: Create Strangulation Offense. – The act creates a new criminal offense: assault by strangulation. The offense is a Class H felony. The State has the burden of proving that the defendant attempted to strangle the victim, and cause physical injury by the act of strangulation. A first time offender would be subject to community punishment, intermediate punishment, or an active sentence. The presumptive range for an active sentence would be a minimum of 5- 6 months.
Although the term " serious bodily injury" is defined by statute, the terms " serious injury" and " physical injury" are not. Whether or not serious or physical injury has occurred is a jury determination, based upon common law.
This part becomes effective December 1, 2004, and applies to offenses committed on or after that date.
Part X: Amend Habitual Misdemeanor Assault Statute. – The act amends the habitual misdemeanor assault statute by:
􀂾 Reducing the number of necessary prior convictions from five to two;
􀂾 Allowing any prior assault conviction ( whether misdemeanor or felony) to count as a prior conviction, with the earlier conviction no more than 15 years prior to the current violation;
􀂾 Requiring that the assault involved physical injury to the victim; and
Chapter 3 Children and Families
Page 10
􀂾 Providing that a conviction of the statutory offense could not be used as a prior felony conviction for any other habitual offense statute.
Currently, an offender must have five prior misdemeanor convictions, two of which are assault convictions, to qualify as a habitual misdemeanor assault offender on a third assault conviction.
This part becomes effective December 1, 2004, and applies to offenses committed on or after that date. Prosecutions for offenses committed before the effective date of this part are not abated or affected by this part, and the statutory provisions that would be applicable but for this part remain applicable to those prosecutions.
Part XI: Domestic Violence Offense Tracking. – The act adds a new provision to provide for reporting offenses involving domestic violence. In cases involving assault or communicating a threat, the judge will determine whether there was a personal relationship between the offender and the victim. If so, there will be an annotation on the judgment to reflect that the case involved domestic violence. The clerk of court is required to make the appropriate entry into the offender's official criminal record to reflect that the offense involved domestic violence.
􀂾 The offender has to be in a personal relationship, as defined by statute.
􀂾 The entry will be made in all cases ( including a murder), where the underlying conduct was assaultive in nature.
􀂾 Any person making a lawful inquiry into a person's criminal history will be able to determine that the person has been convicted of an offense involving domestic violence.
If the judge determines that there was a personal relationship, then the judge is also required to determine whether the defendant should be required to comply with any special conditions of probation. Due to an ambiguity in the statutes, the new provision makes clear that the judge may ( but is not required to) sentence the defendant to house arrest with electronic monitoring.
This part is effective December 1, 2004, and applies to offenses committed on or after that date.
Part XII: Study of Misdemeanor Offense Classifications. – The act requires the North Carolina Sentencing and Policy Advisory Commission to study the classification of misdemeanor offenses, and to develop a system for classifying misdemeanor offenses based upon their severity. The Commission is required to examine the classification of assault offenses in relation to property offenses, crimes against society, and felony assault offenses. This section includes a finding by the General Assembly that the classification of assault offenses that cause serious injury as misdemeanors is inconsistent with the Commission's own classification of felonies based upon harm. The Commission is required to report to the 2005 General Assembly, 2005 Regular Session, with its findings and recommendations ( status and any completed recommendations). A final report is due to the 2005 General Assembly, 2006 Regular Session.
This part became effective August 12, 2004.
Part XIII: Warrantless Arrest for Violation of Pretrial Release Conditions. – The act amends the law to provide that if a law enforcement officer has probable cause to believe that a person has violated a condition of a pretrial release order in a domestic violence case, then the officer may arrest the defendant without a warrant. The arrest must be based upon a violation of one of the following provisions of a release order issued under G. S. 15A- 534.1( 2):
􀂾 That the defendant stay away from the home, school, business or place of employment of the alleged victim;
􀂾 That the defendant refrain from assaulting, beating, molesting, or wounding the alleged victim;
􀂾 That the defendant refrain from removing, damaging or injuring specifically identified property; or
􀂾 That the defendant may visit his or her child or children at times and places provided by the terms of any existing order entered by a judge.
Chapter 3 Children and Families
Page 11
A pretrial release order in a domestic violence case may be entered where the defendant has been arrested for assault on, communicating a threat to, domestic criminal trespass, or committing various felonies upon a spouse or former spouse, or upon someone with whom the defendant has lived as if married.
This part becomes effective December 1, 2004, and applies to offenses committed on or after that date.
Part XIV: Conform State Firearms Law to Federal Law. – The act amends North Carolina law to provide that a person who is a convicted felon may not possess any firearm. A " firearm" would be defined to parallel the definition of " firearm" under federal law. Current State law allows a convicted felon to own guns with a barrel length that is 18 inches or longer, or an overall length of 26 inches or more. It also allows convicted felons to possess any firearm in their home or " place of business".
This part becomes effective December 1, 2004, and applies to offenses committed on or after that date. Prosecutions for offenses committed before the effective date of this act are not abated or affected by this act, and the statutory provisions that would be applicable but for this act remain applicable to those prosecutions.
Part XV: Specifically Allow Cross Warrants. – The act clarifies that a judicial official cannot refuse to issue a warrant solely because a warrant had been issued for the arrest of another person in the same case.
This part became effective August 12, 2004.
Part XVI: Clarify Nurse's Privilege. – The act clarifies that if a written or printed record ( as opposed to live testimony) is otherwise admissible ( e. g., not excluded by the hearsay rule), then it may be entered into evidence. The nurse's privilege applies to any information that the nurse acquired that was necessary to render professional nursing services. If the information was not necessary to the rendering of services, then the nurse may be required to disclose the information. A presiding judge may compel the disclosure of evidence if the judge believes that its disclosure is necessary for a proper administration of justice.
The act also makes a technical change to add the nurse's privilege ( passed last Session), in the provision that excludes evidence of child abuse from the physician- patient privilege in juvenile proceedings.
This part becomes effective December 1, 2004.
Part XVII: Temporary Child Custody in Domestic Violence Hearings. – The act removes the current limitations under which courts may address temporary custody under Chapter 50B.
Custody under Chapter 50B at the ex parte stage. – The act amends the law regarding ex parte custody orders by allowing the court to enter orders at that stage if the child is exposed to a substantial risk of physical or emotional injury ( not " bodily" injury) or sexual abuse. This gives the court more discretion in deciding when a child is at risk.
The changes also require the court, if requested by the aggrieved party, to consider whether the other party should stay away from the child, or return the child to, or not remove the child from, the physical case of a parent or person in loco parentis. If the court decides the other party should have contact with the child, it is required to issue an order specifying the terms of contact to protect the safety of the child and the aggrieved party.
The same provisions apply to an authorized magistrate issuing an ex parte protective order.
Custody under Chapter 50B at a hearing following notice to the other party. – The act creates new requirements for the court when deciding whether to award temporary custody and visitation rights at a hearing under Chapter 50B after the other party has received notice or service of process. Rather than being discretionary, the court is required to consider the issue of custody upon the request of either party. However, it ultimately is within the discretion of the court to decide whether to actually grant an award of custody.
In determining whether custody and visitation should be awarded, the court is required to consider the following listed factors:
Chapter 3 Children and Families
Page 12
􀂾 Whether the child was exposed to a substantial risk of physical or emotional injury or sexual abuse.
􀂾 Whether the child was present during acts of domestic violence.
􀂾 Whether a weapon was used or threatened to be used during any act of domestic violence.
􀂾 Whether a party caused or attempted to cause serious bodily injury to the aggrieved party or the child.
􀂾 Whether a party placed the aggrieved party or the child in reasonable fear of imminent serious bodily injury.
􀂾 Whether a party caused an aggrieved party to engage involuntarily in sexual relations by force, threat, or duress.
􀂾 Whether there is a pattern of abuse against an aggrieved party or the child.
􀂾 Whether a party has abused or endangered the child during visitation.
􀂾 Whether a party has used visitation as an opportunity to abuse or harass the aggrieved party.
􀂾 Whether a party has improperly concealed or detained the child.
􀂾 Whether a party has otherwise acted in a manner that is not in the best interest of the child.
If the court decides to award temporary custody, then the court is also required to consider visitation. If ordering visitation, the court must provide for the safety and well being of both the child and the aggrieved party. The order must give specific parameters or conditions for the visitation, and may include any of the following:
􀂾 Exchange of the child in a protected setting;
􀂾 Supervised visitation;
􀂾 Treatment for the non- custodial parent;
􀂾 Restricting either parent from possessing or consuming controlled substances;
􀂾 Requiring the non- custodial parent to pay for supervised visitation;
􀂾 Prohibiting overnight visitation;
􀂾 Requiring a bond for the return of the child;
􀂾 Ordering an investigation or appointment of GAL for the child; and
􀂾 Any other conditions deemed necessary.
Duration of orders. – The duration of temporary custody orders entered under Chapter 50B are limited to a maximum of one year. While a protective order can generally be renewed indefinitely, any provisions awarding custody are not eligible for renewal beyond the initial one- year period. In addition, any subsequent custody order entered under Chapter 50 will supersede a temporary order entered under Chapter 50B.
Custody under Chapter 50. – G. S. 50- 13.2 is amended so that the new provisions set out in Chapter 50B, requiring courts to consider specific listed factors, apply in all custody cases where the court finds that domestic violence has occurred.
This part becomes effective October 1, 2004, and applies to actions filed on or after that date.
Part XVIII: Prohibit Employment Discrimination Against Domestic Violence Victims. – The act adds a section to Chapter 50B prohibiting employers from discriminating against an employee for taking reasonable time off to appear in court when he or she is seeking relief under Chapter 50B. The employee is required to follow the employer's usual leave procedures, unless an emergency prevents the employee from doing so. An employer may require documentation of the emergency that prevented advance notice of the time off and/ or of the need to appear in court.
This provision will be enforced by the Commissioner of Labor pursuant to Article 21 of Chapter 95 ( Retaliatory Employment Discrimination). Under Article 21, if an employee feels that a violation has occurred, he or she may file a complaint with the Commissioner, who will initiate an investigation. If the Commissioner determines that there is reason to believe the allegations are true, the Commissioner may try to resolve the alleged violation through informal methods. If the Chapter 3 Children and Families
Page 13
Commissioner is unsuccessful, he or she must file a civil action on behalf of the employee or issue a right to sue letter to the employee enabling the employee to bring a civil action. The court may award any or all of the following types of relief:
􀂾 An injunction to enjoin continued violation;
􀂾 Reinstatement of the employee;
􀂾 Reinstatement of full fringe benefits and seniority rights; and
􀂾 Compensation for lost wages, lost benefits, and other economic losses. ( If the court finds that the violation was willful, the court shall treble the amount of damages awarded.)
This part becomes effective October 1, 2004, and applies to actions filed on or after that date.
Part XIX: Privacy for 50B Intake. – The act requires the clerk of superior court, whenever feasible, to provide a private area for 50B complainants to fill out forms and make inquiries.
This part became effective August 12, 2004.
Part XX: Training for Judges and Court Personnel. – The act requests the North Carolina Supreme Court to adopt rules establishing minimum standards of education and training for district court judges in handling civil and criminal domestic violence cases.
The act also directs the Administrative Office of the Courts to study the issue of training for court personnel in the area of domestic violence, and to report its findings and recommendations to the 2005 Regular Session of the 2005 General Assembly.
This part became effective August 12, 2004. ( SS)
Child Restraint Systems Modified
S. L. 2004- 191 ( SB 1218). See Transportation.
Notice for Child Support Enforcement
S. L. 2004- 203, Sec. 42 ( HB 281, Sec. 42). See Civil Law and Procedure.
Studies
New/ Independent Studies/ Commissions
Smart Start Funding Study
S. L. 2004- 161, Part XXXV ( SB 1152, Part XXXV) establishes a Smart Start Funding Study Commission. The Commission shall study the funding of the North Carolina Partnership for Children, Inc. and shall consider the following:
􀂾 The current funding system of the North Carolina Partnership for Children, Inc.
􀂾 Strategies for achieving full funding and full service for North Carolina's young children and families.
􀂾 Funding equity among all counties and local partnerships.
􀂾 Any other information the Commission deems relevant.
Chapter 3 Children and Families
Page 14
The Commission is required to make its findings and recommendations in a final report to the 2005 General Assembly. The Commission will terminate upon filing its final report, or the
convening of the 2005 General Assembly the Commission.
This part became effective August 2, 2004. ( SA)
For a complete list of the studies and reports authorized by the 2004 Session of the
2003 General Assembly, please refer to the Appendix contained in this publication. Chapter 3 Children and Families
Page 15
Chapter 4
Civil Law and Procedure
Brenda Carter ( BC), Karen Cochrane- Brown ( KCB), Bill Gilkeson ( BG), Kory Goldsmith ( KG),
Trina Griffin ( TG), Tim Hovis ( TH), Robin Johnson ( RJ), Hal Pell ( HP), Wendy Graf Ray ( WGR), Walker Reagan ( WR), Steve Rose ( SR), and Susan Sitze ( SS).
Enacted Legislation
Increase Service of Process Fees
S. L. 2004- 113 ( HB 918) increases the fee for service of process in most civil actions from $ 5.00 to $ 15.00 and provides that at least 50% of the fees collected will be used by the county to ensure timely service of process within the county, which may include the hiring of additional law enforcement personnel upon the recommendation of the sheriff. The fee was last increased in 1990. No service of process fee is charged in actions related to domestic violence.
This act became effective September 1, 2004, and applies to fees assessed or collected on or after that date. ( TG)
Adjust Court Jurisdiction/ Amend Magistrate Term
S. L. 2004- 128, Secs. 4- 6 ( SB 577, Secs. 4- 6) make the following changes:
􀂾 Notice of Mechanics Lien on Driving While Impaired. – Sections 4 and 5 of the act amend the mechanics lien statutes relevant to storage charges for vehicles held under the driving while impaired forfeiture laws. This change requires a judge to include in any order releasing the vehicle from the seizure notice to the owner, that the owner must notify the Division of Motor Vehicles ( DMV) if they wish a hearing to contest the amount of the storage charges. If this notice is included in the order served on the owner, DMV is not able to serve notice otherwise on the owner of the amount of the lien by registered or certified mail, and if the owner does not request a hearing before DMV on the mechanics lien, the mechanic may proceed to sell the vehicle to satisfy the lien without having to serve notice of the sale by publication and without having a default hearing before the clerk.
These sections become effective October 1, 2004.
􀂾 Entry by Clerk of Default Judgment for Absolute Divorce. – Section 6 of the act authorizes the clerk of court to enter judgments by default in divorce actions when the only claim is for divorce, or divorce and resumption of a former name, and the defendant fails to answer the complaint, or answers the complaint by admitting to the allegations, and the defendant is not incompetent.
This section becomes effective October 1, 2004.
Section 1 of this act concerns increased jurisdiction by small claims court. For additional information, see Courts, Justice and Corrections.
Section 2 of this act concerns jurisdiction for revocation of probation for felony pleas heard in district court. For additional information, see Courts, Justice and Corrections.
Section 3 of this act concerns adding a drug treatment court program as intermediate punishment. For additional information, see Criminal Law and Procedure.
Sections 7 through 14 of this act concern termination of certain parental rights of persons convicted of first or second degree rape. For additional information, see Criminal Law and Procedure.
Section 15 of this act concerns prohibiting the threatening of a witness with the assertion or denial of parental rights. For additional information, see Criminal Law and Procedure.
Chapter 4 Civil Law and Procedure
Page 16
Sections 16 through 18 of this act concern an amendment to the North Carolina Constitution to extend the Magistrate term to four years. For additional information, see Constitution and Elections.
Section 19 of this act concerns the number, term, and appointment of magistrates. For additional information, see Courts, Justice and Corrections. ( WR)
Compensation of Trustees/ Other Fiduciaries
S. L. 2004- 139 ( SB 470). See Property, Trusts, and Estates.
Clarifications Regarding Mediation
S. L. 2004- 154, Secs. 1 and 2 ( SB 52, Secs. 1 and 2) make mediations regarding a personnel matter by The University of North Carolina or a constituent institution subject to the same rules as mediations in district or superior court matters. Evidence of the statements made or conduct occurring during the mediation would not be admissible as evidence in any proceeding on the same claim, except a claim to enforce a signed settlement agreement and the evidence would not be public record. A mediator, person training to become a mediator, or a mediation participant could not be required to testify regarding the mediation, except to attest to the signing of a settlement agreement. Finally, the drafting of a mediation summary would not be considered practicing law.
This section became effective August 2, 2004.
Sections 3 through 12 of this act concern open discovery in criminal cases. For additional information, see Criminal Law and Procedure. ( KG)
Venue for Juvenile Hearings
S. L. 2004- 155 ( HB 1665). See Courts, Justice & Corrections.
Crime Victims Financial Recovery Assistance Act
S. L. 2004- 159 ( HB 1519), which is a modified " Son of Sam" law, better enables crime victims to satisfy restitution orders and civil judgments entered against their offenders from the offender's assets by providing notice of the assets to the victims and by reviving the statute of limitations for a civil action once assets are discovered. More specifically, the act contains the following substantive provisions:
Declaration of Purpose. – The act declares as a matter of public policy that no person who commits a crime should thereafter gain monetary profit as the result of committing the crime. Furthermore, the act declares that convicted felons do not possess equitable title to profit from their crimes, and that the property is subject to seizure by the State for the benefit of the victims. The act identifies the compelling State interests, recognized as such by the United States Supreme Court, ensuring that persons convicted of crimes do not profit from those crimes and that victims of crime are compensated by those who have harmed them.
Notice of Profit from Crime or Funds of an Offender. – The act requires the following entities that knowingly contract for, pay, or agree to pay ( i) profit from crime, or ( ii) funds of an offender, to notify and submit a copy of the contract to the Commission:
􀂾 The contracting party;
􀂾 The State or a subdivision of the State whenever the payment or obligation to pay involves funds of an offender in excess of $ 10,000 that a superintendent, sheriff, or municipal officer receives or will receive on behalf of an inmate serving a sentence with the Department of Correction or a prisoner confined at a local correctional facility; and
Chapter 4 Civil Law and Procedure
Page 17
􀂾 The State or a subdivision of the State when it makes a payment or has an obligation to pay funds of an offender in excess of $ 10,000.
In all other instances where the payment or obligation to pay involves funds of an offender and the value of the funds exceeds or will exceed $ 10,000, the offender who receives or will receive the funds shall give written notice to the Commission.
" Profit from crime" is defined as any income, assets, or property generated from the commission of a crime for which the offender was convicted, including any income generated from the sale of crime memorabilia or obtained through unique knowledge during the commission of the crime. Crime memorabilia is defined as tangible property belonging to or that belonged to an offender prior to conviction, the value of which is increased by the offender's notoriety.
" Funds of an offender" is defined as all funds and property received from any source by an offender, excluding child support and earned income, where the offender is ( i) an inmate serving a sentence with the Department of Corrections or a prisoner confined at a local correctional facility or federal correctional institute, or ( ii) a person serving a sentence of probation, conditional discharge, or post- release supervision.
Penalty for Failure to Notify. – A person who willfully fails to provide notice as required would be subject to an assessment in the amount of the payment or obligation to pay, to be levied after notice and opportunity to be heard, plus a civil penalty in the amount of $ 1,000 or 10% of the obligation to pay, whichever is greater. Once collected, the assessment would be placed in escrow for the benefit of eligible persons who would be notified of their right to bring a civil action. The proceeds of the civil penalty would be remitted to the Civil Penalty and Forfeiture Fund. The act also provides for the return to the respondent of any unclaimed funds held in escrow upon the expiration of the three- year statute of limitations period and upon final determination of all pending claims.
Notice to Eligible Persons by Commission. – The Commission must notify all " eligible persons of the existence of the contract. An " eligible person" means ( 1) a victim of the crime for which the offender was convicted; ( 2) a surviving spouse, parent, or child of a deceased victim of the crime for which the offender was convicted; or ( 3) any other person dependent for the person's principal support upon a deceased victim of the crime for which the offender was convicted. However, " eligible person" does not include the offender or an accomplice to the offender.
Revival of Statute of Limitations; Notice of Civil Action. – If the eligible person has already obtained a civil judgment against the offender for damages arising out of the offense for which the offender was convicted, the eligible person may proceed to execute against those assets as provided for by current law. If the eligible person has not obtained a civil judgment, this act provides that the person has three years from the notice of the profit from crime or funds of the offender to bring a civil action for damages arising out of the offense for which the offender was convicted, even if the original statute of limitations for the cause of action has expired. The eligible person must submit a copy of the lawsuit to the Commission, which, in turn, would attempt to notify all other eligible persons of the lawsuit.
Responsibilities of and Authority of the Commission. –
Notice to Eligible Persons. – The Commission, upon receipt of notice of a contract or agreement to pay profit from crime or funds of an offender, must notify all known eligible victims of the existence of the contract or agreement.
Notice of Civil Action. – The Commission, upon notice of the filing of a civil action, must notify all other eligible victims of the filing.
Authority to Avoid Wasting of Assets. – The Commission has standing and, acting on its own behalf or on behalf of all eligible persons, has the right to apply for any and all provisional remedies that are also otherwise available to the plaintiff in the civil action, including attachment, injunction, constructive trust, and receivership.
Subrogation by Commission. – Claims on profit from crime or funds of an offender are subject to subrogation by the Crime Victims Compensation Fund.
Chapter 4 Civil Law and Procedure
Page 18
This act becomes effective October 1, 2004, and applies to contracts entered into on or after that date or to funds that accrue on or after that date. ( TG)
Prevent Workplace Violence
S. L. 2004- 166 ( SB 916), as amended by S. L. 2004- 199, Sec. 58 ( SB 1225, Sec. 58), creates a new procedure to allow an employer to obtain civil no- contact orders against a person who has harmed, threatened to harm, or stalked an employee of the employer.
Upon a finding that the employee has been the victim of unlawful conduct, the court is authorized to issue temporary or permanent orders restraining the conduct of the perpetrator. " Unlawful conduct" is defined to include bodily injury, attempted bodily injury, stalking and communicating a threat.
Permissible remedies include ordering the perpetrator not to:
􀂾 Visit, assault, molest or interfere with the employee or the employer at the workplace;
􀂾 Stalk the employee at the workplace;
􀂾 Harass, abuse or injure the employee or employer at the workplace; and
􀂾 Contact the employee or employer by any means at the workplace.
Temporary orders may be granted for periods of up to 10 days and may be issued ex parte and after normal business hours under certain circumstances. Permanent orders may be granted for periods of up to one year. All orders may be renewed. Violations of an order are punished as contempt of court.
This act becomes effective December 1, 2004. ( WR)
Strengthen Domestic Violence Laws
S. L. 2004- 186, Parts XVI, XVII, and XIX ( HB 1354, Parts XVI, XVII, and XIX) make changes to clarify nurse's privilege; to temporary child custody in domestic violence hearings and to privacy for 50B intake. The act is divided into the Parts listed below.
Part I: Domestic Violence Offender Treatment.
Part II: Domestic Violence Training for Law Enforcement.
Part III: Study of Anti- Violence Education in Schools and Training for School Personnel.
Part IV: Legal Services for Victims of Domestic Violence.
Part V: Domestic Violence Advocates on Child Fatality Task Force.
Part VI: Study of Mental Health Services for Domestic Violence Victims.
Part VII: Study of CLE Credit for Pro Bono Legal Representation.
Part VIII: Domestic Relationship Aggravating Factor.
Part IX: Create Strangulation Offense.
Part X: Amend Habitual Misdemeanor Assault Statute.
Part XI: Domestic Violence Offense Tracking.
Part XII: Study of Misdemeanor Offense Classifications.
Part XIII: Warrantless Arrest for Violation of Pretrial Release Conditions.
Part XIV: Conform State Firearms Law to Federal Law.
Part XV: Specifically Allow Cross Warrants.
Part XVI: Clarify Nurse's Privilege.
Part XVII: Temporary Child Custody in Domestic Violence Hearings.
Part XVIII: Prohibit Employment Discrimination Against Domestic Violence Victims.
Part XIX: Privacy for 50B Intake.
Part XX: Training for Judges and Court Personnel.
See Children and Families for the summary of the entire act.
Chapter 4 Civil Law and Procedure
Page 19
Create Civil No- Contact Protective Orders
S. L. 2004- 194 ( HB 951), as amended by S. L. 2004- 199, Sec. 50 ( SB 1225, Sec. 50), authorizes courts to issue protective orders, similar to domestic violence orders under Chapter 50B of the General Statutes, in situations where a person has been a victim of stalking or nonconsensual sexual conduct committed by a person with whom the victim is not in a domestic relationship.
Upon a finding that the victim has suffered unlawful conduct, the court is authorized to issue temporary or permanent orders restraining the conduct of the perpetrator. " Unlawful conduct" is defined to include nonconsensual sexual conduct and stalking. " Nonconsensual sexual conduct" is defined as any intentional or knowing touching, fondling or sexual penetration by a person, directly or through clothing, of the sexual organs of another for the purpose of sexual gratification or arousal where consent is not freely given. A " victim" is defined as a person against who unlawful conduct is committed other than in a situation where an action could be brought under the domestic violence laws.
Under this law, the victim, or a person acting on the behalf of an incompetent victim, may bring an action. The act allows an action under this law to be brought without paying filing fees to the clerk of court or service fees to the sheriff. The act restricts the admissibility of the victim's prior sexual activities to the same standards as permitted in criminal cases.
If the court finds that the victim suffered unlawful conduct, the court may order the perpetrator not to visit, assault, molest or otherwise interfere with the victim, and order the perpetrator to cease stalking, harassing, abusing, injuring, or contacting the victim by telephone, written communication or electronic means. The court may also order the perpetrator to stay away from the victim including prohibitions against entering the victim's residence, school, place of employment or other specified places at times when the victim is present.
Temporary orders may be granted for periods of up to 10 days and may be issued ex parte and after normal business hours under certain circumstances. Permanent orders may be granted for periods of up to one year. All orders may be renewed. Violations of an order are punished as contempt of court.
This act becomes effective December 1, 2004. ( WR)
Court Filing Requirements
S. L. 2004- 199, Sec. 5 ( SB 1225, Sec. 5) amends Rule 5( d) of the Rules of Civil Procedure to exempt subpoenas and objections to subpoenas from court filing requirements in civil actions. Changes made in 2003 expanding notice requirements to parties in civil actions inadvertently required these documents to also be filed in the court files.
This section becomes effective October 1, 2004, and applies to all pending cases and cases filed on or after that date. ( RJ)
Repeal Statute of Limitations for Challenge to Presumption of Ownership of Abandoned Railroad Easement
S. L. 2004- 203, Sec. 14 ( HB 281, Sec. 14) repeals the statute of limitations currently required for persons who claim ownership contrary to the presumption that upon abandonment of a railroad easement, all right, title and interest in that land is presumed vested in persons who own lots or parcels of land adjacent to the abandoned easement.
This section became effective August 17, 2004. ( RJ)
Chapter 4 Civil Law and Procedure
Page 20
Notice for Child Support Enforcement
S. L. 2004- 203, Sec. 42 ( HB 281, Sec. 42) amends the law governing agreements between the Department of Health and Human Services and financial institutions for the purpose of facilitating the enforcement of child support obligations. This section allows a financial institution to agree with the Child Support Enforcement Agency that notice of levies on bank accounts for child support arrears may be sent to the institution in a manner different from formal service under Rule 4 of the Rules of Civil Procedure if the institution agrees in writing to a different method before notice of the service. This would allow the institution to have the notice sent directly to the appropriate department and would allow the notice to be sent by email or fax.
This section became effective August 17, 2004. ( RJ)
For a complete list of the studies and reports authorized by the 2004 Session of the
2003 General Assembly, please refer to the Appendix contained in this publication. Chapter 4 Civil Law and Procedure
Page 21
Chapter 5
Commercial Law and Consumer Protection
Karen Cochrane Brown ( KCB), Wendy Graf Ray ( WGR), Tim Hovis ( TH),
Walker Reagan ( WR), and Steve Rose ( SR)
Enacted Legislation
Notice Period for Sales and Use Tax Refunds
S. L. 2004- 22 ( HB 1448). See Finance.
Emergency Funding/ Continuing Provisions
S. L. 2004- 88 ( HB 1352). See Finance.
Limit Use of Impervious Parking Surfaces for Sale of Nursery Stock
S. L. 2004- 124, Sec. 6.29 ( HB 1414, Sec. 6.29). See Environment and Natural Resources.
Regional Partnerships Vision Plans
S. L. 2004- 124, Sec. 13.6 ( HB 1414, Sec. 13.6) appropriates $ 1,750,000 to the North Carolina Partnership for Economic Development Inc. to be equally allocated to seven regional economic development partnerships for development and implementation of strategic economic development plans. In developing and implementing these plans, the partnerships must:
􀂾 Perform a comprehensive study of the region's resources and existing businesses located in the region to determine what business clusters exist and the boundaries of those clusters, to develop ways to strengthen those clusters, and to determine in what areas the region has a competitive advantage that could lead to the development of future clusters.
􀂾 Ensure that the benefits of the economic development plan are widely dispersed and that the plan provides real opportunities in rural areas as well as in urban and suburban areas.
􀂾 Develop focused and targeted economic development initiatives related to the recruitment and development of new businesses and the retention of existing businesses.
􀂾 Provide a mechanism for continuous monitoring of the regional economy and competitiveness indicators and for updating the strategic economic development plan to take account of changing economic conditions.
􀂾 Recommend infrastructure investments to meet the region's current and anticipated future needs.
􀂾 Integrate the North Carolina Community College System and The University of North Carolina into economic development efforts and planning.
􀂾 Create leadership networks that span the public and private sectors and that facilitate communication within clusters, between members of complementary clusters, and between members of the public and private sectors.
Chapter 5 Commercial Law and Consumer Protection
Page 22
The section also repeals S. L. 2002- 126, Sec. 8.3 which directed the State Board of Community Colleges, the Board of Governors of The University of North Carolina, and the Department of Commerce, in conjunction with the North Carolina Board of Economic Development and the seven regional economic development commissions to adopt a joint policy that required the development of a five- year vision plan for each of the economic development regions in the State.
This section became effective July 1, 2004. ( TM)
Transfer Business License Information Office Functions and Duties to the Department of Commerce
S. L. 2004- 124, Sec. 13.9A ( HB 1414, Sec. 13.9A). See State Government.
Housing Finance Agency Shall Create the North Carolina Home Protection Pilot Program and Loan Fund in Order to Assist North Carolina Workers Who Have Lost Jobs as a Result of Changing Economic Conditions in North Carolina When the Workers are in Need of Temporary Assistance to Avoid Losing Their Homes to Foreclosure
S. L. 2004- 124, Sec. 20A. 1 ( HB 1414, Sec. 20A. 1) directs the North Carolina Housing Finance Agency to develop and administer the North Carolina Home Protection Pilot Program and Loan Fund ( Program) to assist North Carolina workers who have lost jobs as a result of changing economic conditions and are in need of assistance to avoid losing their homes to foreclosure. The Agency is also authorized to make loans secured by liens on residential property, fund nonprofit counseling agencies that assist in implementing the Program, and develop and fund enhanced methods by which workers are notified of foreclosure mitigation services and the availability of loans from the Agency. The Agency must report to the General Assembly on the effectiveness of the Program no later than May 1, 2005.
The North Carolina Housing Finance Agency is further directed to convene meetings of experts to study the problem of increasing foreclosure filings statewide, possible improvements to the laws regarding foreclosure procedures, and the benefits and feasibility of creating a foreclosure avoidance loan fund. The Agency must report its recommendations to the General Assembly no later than May 1, 2005.
The section also provides certain protections to mortgagors who apply for loan assistance under this provision. Mortgagees are prohibited from:
􀂾 Accelerating the maturity of a mortgage obligation;
􀂾 Commencing or continuing any legal action, including foreclosure;
􀂾 Taking possession of any security of the mortgagor;
􀂾 Procuring or receiving a deed in lieu of foreclosure;
􀂾 Entering judgment by confession pursuant to a note accompanying a mortgage; and
􀂾 Proceeding to enforce the mortgage obligation for a period of 120 days after filing of the application.
The Agency must notify the mortgagee within five business days of its receipt of an application.
The Agency is exempt from rulemaking under the Administrative Procedure Act solely with respect to adopting procedures for qualifying for assistance under the pilot program. However, the Agency must publish the procedures in the North Carolina Register for at least 30 days, hold at least one public hearing, and accept oral and written comments on the procedures.
This section became effective July 1, 2004. ( KCB)
Chapter 5 Commercial Law and Consumer Protection
Page 23
Monetary Comp/ Outdoor Advertising
S. L. 2004- 152 ( HB 1213). See Local Government.
Tanning Salons/ Restrictions on Use
S. L. 2004- 157 ( SB 657) requires operators of tanning equipment and owners of tanning facilities to comply or ensure compliance with the following:
􀂾 Provide a warning statement to each consumer defining the potential hazards and consequences of exposure to ultraviolet radiation. Before a consumer's initial use of the equipment, the operator must obtain the consumer's signature on the warning statement.
􀂾 Prohibit the use of tanning equipment by persons 13 years of age or younger without a written prescription from the person's medical physician specifying the nature of the medical condition requiring treatment, the number of visits, and the time of exposure for each visit.
􀂾 Prohibit claims or the distribution of promotional materials claiming that the use of tanning equipment is safe or free from risk or will result in medical or health benefits.
The Radiation Protection Commission is authorized to adopt rules implementing the act. Rules adopted pursuant to the act are enforced by the Department of Health and Human Services and are in addition to existing rules and regulations that do not conflict with the act.
The act also defines the terms " consumer," " tanning facility," and " tanning equipment". This act becomes effective October 1, 2004. ( TH)
Revise Banking Laws of North Carolina
S. L. 2004- 171 ( SB 676) makes technical and clarifying changes to the banking laws of the State. Many of the changes are intended to maintain competitive equality among banks, regardless of whether they are chartered by North Carolina, another state or the federal government. The act also makes several changes to the Mortgage Lending Act to enhance the Commissioner of Banks' enforcement authority.
Additionally, the act authorizes the Legislative Research Commission to study whether more comprehensive changes to the banking laws are warranted. The Commission is required to make recommendations to the 2005 General Assembly, prior to the convening of the 2006 Regular Session.
This act becomes effective October 1, 2004, and applies to acts occurring and transactions or agreements entered into on or after that date. ( KCB)
Repeal UCC Article on Bulk Transfers.
S. L. 2004- 190 ( SB 230) repeals Article 6 of Chapter 25 of the General Statutes – Bulk Transfers of the Uniform Commercial Code, and makes conforming changes to other statutes. Article 6 required that prior to the bulk sale of inventory of businesses, notice must be given to all potential creditors in order to be assured of clear title to the inventory. More recent changes in recording security interests, credit reporting and the ability to get jurisdiction to collect debts have made Article 6 unnecessary. North Carolina joins 44 other states that have repealed Article 6.
This act becomes effective January 1, 2005. ( WR)
Chapter 5 Commercial Law and Consumer Protection
Page 24
Studies
Legislative Research Commission
Regulating Ticket Brokers
S. L. 2004- 161, Sec. 2.1( 1) b ( SB 1152, Sec. 2.1( 1) b) authorizes the Legislative Research Commission to study the effectiveness of the regulation of ticket brokers and address any issues that relate to the registration of ticket brokers.
The Commission may report its findings, together with any recommended legislation to the 2005 General Assembly.
This section became effective August 2, 2004. ( KCB)
Debt Collection Practices
S. L. 2004- 161, Sec. 2.1( 3) ( SB 1152, Sec. 2.1( 3)) authorizes the Legislative Research Commission to study current debt collection practices in order to determine how to minimize mistakes in correctly identifying debtors and what remedies should be available for persons wrongly identified as debtors.
The Commission may report its findings, together with any recommended legislation to the 2005 General Assembly.
This section became effective August 2, 2004. ( KCB)
Pawnbrokers Study
S. L. 2004- 161, Sec. 2.1( d) ( SB 1152, Sec. 2.1( d)) authorizes the Legislative Research Commission to study the laws regulating pawnbrokers and those non- regulated retail outlets engaging in similar business and acting as pawnbrokers. If undertaken by the Commission, the Commission may examine how the following procedures would impact pawnbrokers, non- regulated retail outlets, and existing law. The Commission may also examine how the following modifications would more effectively aid in the recovery of stolen property:
􀂾 Picture identification of sellers or pledgers;
􀂾 Thumbprints on each pawn or sales receipt;
􀂾 Machine- printed or otherwise legible pawn and sales receipt;
􀂾 Requirements for time and date on pawn or sales receipts;
􀂾 Recordation of any visible owner- applied numbers or markings on property;
􀂾 Prohibition on receipt and sale of new property;
􀂾 Authorization of fees to support local pawnbroker- related law enforcement;
􀂾 Computerization of pawnshop records; and
􀂾 Requirement that pawnbroker records be made available to law enforcement.
The Legislative Research Commission may report its findings to the 2005 General Assembly.
This section became effective August 2, 2004. ( JHM)
Equity- Building Homes
S. L. 2004- 161, Sec. 2.1( k) ( SB 1152, Sec. 2.1( k)) authorizes the Legislative Research Commission to study methods to substantially increase the number of North Carolinians who own equity- building homes. The term " equity- building home" means a residential structure that will be the purchaser's primary residence and that meets the State and local building code standards. An
Chapter 5 Commercial Law and Consumer Protection
Page 25
equity- building home will also have characteristics that are likely to cause it to appreciate in value over time.
The Commission may report its findings, together with any recommended legislation to the 2005 General Assembly.
This section became effective August 2, 2004. ( KCB)
Revise Banking Laws of North Carolina
S. L. 2004- 171 ( SB 676). The Legislative Research Commission is authorized to study whether more comprehensive changes to the banking laws are warranted. For additional information, see summary under Enacted Legislation this chapter.
Referrals to Existing Commissions/ Committees
Electronic Recordation and Revision of Notary Laws
S. L. 2004- 161, Sec. 6.1 ( SB 1152, Sec. 6.1) directs the General Statutes Commission to study the issue of electronic recordation, specifically with regard to real property documents and other documents filed with the registers of deeds. The Commission must study methods for establishing uniform legal standards for the receipt, recordation, authentication, preservation, and retrieval of electronic documents.
The Commission must report its findings and recommendations and any legislative proposals to the 2005 General Assembly.
This section became effective August 2, 2004. ( KCB)
Uniform Unincorporated Nonprofit Association
S. L. 2004- 161, Sec. 7.1 ( SB 1152, Sec. 7.1) directs the General Statutes Commission to study the Uniform Unincorporated Nonprofit Association Act in consultation with interested parties and to report to the 2005 General Assembly on the Commission's recommendations and legislative proposals.
This section became effective August 2, 2004. ( KCB)
Referrals to Departments, Agencies, Etc.
Housing Finance Agency Shall Create the North Carolina Home Protection Pilot Program and Loan Fund in Order to Assist North Carolina Workers Who Have Lost Jobs As a Result of Changing Economic Conditions in North Carolina When the Workers Are in Need of Temporary Assistance to Avoid Losing Their Homes to Foreclosure
S. L. 2004- 124, Sec. 20A. 1 ( HB 1414, Sec. 20A. 1). The North Carolina Housing Finance Agency is directed to study various issues related to foreclosure. For additional information, see summary under Enacted Legislation this chapter. Chapter 5 Commercial Law and Consumer Protection
Page 26
Electronic Recordation and Revision of Notary Laws
S. L. 2004- 161, Sec. 6.2 ( SB 1152, Sec. 6.2) directs the Secretary of State to study the issue of amending the notary public laws in order to modernize and simplify their administration. The study must also address the issue of electronic notarization.
The Secretary must report any findings and recommendations, including legislative proposals to the 2005 General Assembly
This section became effective August 2, 2004. ( KCB)
Regional Partnerships Vision Plans
S. L. 2004- 124, Sec. 13.6 ( HB 1414, Sec. 13.6) appropriates $ 1,750,000 to the North Carolina Partnership for Economic Development Inc. to be equally allocated to seven regional economic development partnerships for development and implementation of strategic economic development plans. In developing and implementing these plans, the partnerships must:
􀂾 Perform a comprehensive study of the region's resources and existing businesses located in the region to determine what business clusters exist and the boundaries of those clusters, to develop ways to strengthen those clusters, and to determine in what areas the region has a competitive advantage that could lead to the development of future clusters.
􀂾 Ensure that the benefits of the economic development plan are widely dispersed and that the plan provides real opportunities in rural areas as well as in urban and suburban areas.
􀂾 Develop focused and targeted economic development initiatives related to the recruitment and development of new businesses and the retention of existing businesses.
􀂾 Provide a mechanism for continuous monitoring of the regional economy and competitiveness indicators and for updating the strategic economic development plan to take account of changing economic conditions.
􀂾 Recommend infrastructure investments to meet the region's current and anticipated future needs.
􀂾 Integrate the North Carolina Community College System and The University of North Carolina into economic development efforts and planning.
􀂾 Create leadership networks that span the public and private sectors and that facilitate communication within clusters, between members of complementary clusters, and between members of the public and private sectors.
This section also repeals S. L. 2002- 126, Sec. 8.3 which directed the State Board of Community Colleges, the Board of Governors of The University of North Carolina, and the Department of Commerce, in conjunction with the North Carolina Board of Economic Development and the seven regional economic development commission to adopt a joint policy that required the development of a five- year vision plan for each of the economic development regions in the State.
The section became effective July 1, 2004. ( TM)
For a complete list of the studies and reports authorized by the 2004 Session of the
2003 General Assembly, please refer to the Appendix contained in this publication. Chapter 5 Commercial Law and Consumer Protection
Page 27
Chapter 6
Constitution and Elections
Erika Churchill ( EC) and Bill Gilkeson ( BG)
Note: For legislation affecting voting, the legislation cannot be implemented until it has received approval from the United States Department of Justice under Section 5 of the Voting Rights Act of 1965. Approval is most commonly obtained administratively from the United State Attorney General. This requirement applies to legislation affecting any of the 40 North Carolina counties covered by Section 5, including all statewide legislation. Unless otherwise indicated, the effective date stated is the effective date as it is in the legislation. It may be that Section 5 Voting Rights Act approval has not yet been obtained, and therefore the act cannot be implemented until such approval is forthcoming.
Enacted Legislation
House Redistricting Plan
S. L. 2003- 434, 2003 Extra Session ( HB 3, 2003 Extra Session) establishes districts for the North Carolina Senate and House and makes related changes to the election laws. For additional information on redistricting in North Carolina, see the 2003 Redistricting Guide, Fourth Ediion, Corrected Copy, and the 2002 Summaries of Substanive Ratified Legislation.
t
t
Briefly, the events in the year prior to the enactment of S. L. 2003- 434 are:
􀂾 November 5, 2002: General election held in North Carolina. In the Senate, the Democratic Party retains control with 28 of the 50 seats. In the House, the Republican Party gains control with 61 of the 120 seats.
􀂾 March 10, 2003: The North Carolina Supreme Court hears oral arguments in the appeal of May 31, 2002, trial court order in Stephenson v. Bartlett.
􀂾 March 14, 2003: The North Carolina Supreme Court orders trial court Judge Knox Jenkins to provide detailed findings of fact and conclusions of law to support his decision to hold Sutton 5 and Senate Fewer Divided Counties unconstitutional in Stephenson v. Bartlett.
􀂾 April 17, 2003: Judge Jenkins responds to the North Carolina Supreme Court in the Stephenson matter by submitting additional findings of fact and conclusions of law.
􀂾 July 16, 2003: The North Carolina Supreme Court issues an opinion affirming Judge Jenkins's May 31, 2002, order holding Sutton 5 and Senate Fewer Divided Counties unconstitutional, thereby triggering the need for the General Assembly to enact new districting plans for the House and Senate.
􀂾 November 24, 2003: General Assembly convenes in Extra Session to enact new House and Senate districting plans.
􀂾 November 25, 2003: HB 3 is ratified and signed by Governor Easley. The act became Ch. S. L. 2003- 434 Extra Session.
The act sets forth new district lines for the North Carolina House and the North Carolina Senate. Maps of the districts can be obtained by contacting the Research Division. The act also contains the following:
􀂾 Grants authority to the State Board of Elections to delay the primary election for the 2004 election cycle, if needed; the ability to adopt temporary rules as needed to accomplish that election; and made other conforming changes. ( The State Board of Elections delayed the primary until July 20, 2004.)
Chapter 6 Constitution and Elections
Page 28
􀂾 Amends the General Statutes to provide that if a primary date is delayed for the State House or State Senate, then all primaries must be held on the same day.
􀂾 Amends the General Statutes to provide for a three judge panel for redistricting challenges as follows:
• Any redistricting challenge to State legislative or congressional districts must be filed in Wake County Superior Court.
• Upon filing of the redistricting challenge, the Chief Justice of the Supreme Court is to be notified, and the Chief Justice is to appoint a three judge panel to hear the action.
• The three judge panel appointed by the Chief Justice is to consist of the senior resident superior court judge of Wake County, one resident superior court judge from the First through Fourth Judicial Divisions, and one resident superior court judge from the Fifth through Eighth Judicial Divisions. No member of the panel may be a former member of the General Assembly.
􀂾 Amends the General Statutes to provide that:
• Any order declaring unconstitutional, or otherwise invalid, any redistricting act of the General Assembly must find with specificity all facts supporting the declaration.
• The General Assembly must first be given an opportunity to remedy any defects in a redistricting act before a court may substitute its redistricting plan.
• Appeal of redistricting challenges is directly to the North Carolina Supreme Court.
• The Attorney General seeks pre- clearance under Section 5 of the Voting Rights Act for acts of the General Assembly that district State legislative or congressional districts.
• The ban on moving precinct lines would be extended until December 31, 2004.
This act became effective November 25, 2003, and the United States Department of Justice issued a letter on March 31, 2004, stating they would not object to the implementation of the plans. ( EC)
Constitutional Limits
S. L. 2004- 125 ( HB 737) parallels the federal law regarding reporting of spending for " electioneering communications" during federal campaigns elections, applying similar requirements for elected statewide State offices and General Assembly seats.
The act requires that every individual, committee, association, or any other organization or group of individuals that makes a disbursement for the direct costs of producing and airing electioneering communications in an aggregate amount in excess of ten thousand dollars ($ 10,000) during any calendar year must, within 24 hours of each disclosure date, file with the State Board of Elections a statement containing the following information:
􀂾 The identification of the entity making the disbursement, of any entity sharing or exercising direction or control over the activities of that entity, and of the custodian of the books and accounts of the entity making the disbursement;
􀂾 The principal place of business of the entity making the disbursement if the entity is not an individual;
􀂾 The amount of each disbursement of more than $ 1,000 during the period covered by the statement and the identification of the entity to which the disbursement was made;
􀂾 The elections to which the electioneering communications pertain and the names, if known, of the candidates identified or to be identified;
􀂾 If the disbursements were paid out of a segregated bank account that consists of funds contributed solely by individuals directly to that account for electioneering communications, the names and addresses of all contributors who contributed an
Chapter 6 Constitution and Elections
Page 29
aggregate amount of more than $ 1,000 during the period beginning on the first day of the preceding calendar year and ending on the disclosure date; and
􀂾 If the disbursements were paid out of funds not in a segregated bank account that consist of funds contributed solely by individuals directly to that account for electioneering communications, the names and addresses of all contributors who contributed an aggregate amount of more than one thousand dollars ($ 1,000) to the entity making the disbursement during the period beginning on the first day of the preceding calendar year and ending on the disclosure date.
The act defines the term " electioneering communication" as follows:
􀂾 Any broadcast, cable, or satellite communication that has all the following characteristics:
• Refers to a clearly identified candidate for a statewide office or the General Assembly;
• Is made within one of the following time periods:
1. 60 days before a general or special election for the office sought by the candidate,
2. 30 days before a primary election or a convention of a political party that has authority to nominate a candidate for the office sought by the candidate; and
• Is targeted to the relevant electorate.
􀂾 Any mass mailing or telephone bank that has all the following characteristics:
• Refers to a clearly identified candidate for a statewide office or the General Assembly;
• Is made within one of the following time periods:
1. 60 days before a general or special election for the office sought by the candidate, or
2. 30 days before a primary election or a convention of a political party that has authority to nominate a candidate for the office sought by the candidate; and
• Is targeted to the relevant electorate.
The act excepts both radio/ TV provision and mass mail/ phone bank communications made during a session of the General Assembly that urge the audience to communicate with a legislator or legislators concerning that piece of legislation. The act also provides that electioneering communications that are coordinated with a candidate or party are contributions, and are subject to the limits and bans of the regular North Carolina Campaign Finance Act ( NCCFA), and makes conforming changes to the NCCFA.
This act became effective July 20, 2004, and criminal penalties are not applicable until October 1, 2004. The United States Department of Justice issued a letter on August 26, 2004, stating they do not object to the implementation of the act. ( EC)
Election Law Changes
S. L. 2004- 127 ( HB 1119) contains a number of purely technical changes to the election laws, plus several substantive changes. The main substantive changes are as follows:
Precinct Boundaries and Names. – Under existing law, the county boards of elections have the basic authority to establish and change precinct boundaries, so long as the boundaries follow Census block lines, and exceptions may be allowed to the Census block rule. Until Dec. 31, 2004, a freeze has been placed on precinct boundary changes. Current law gives counties a free hand in how they can name precincts. The bill lifts the boundary freeze 4 ½ months early – on August 15, 2004, but at that time imposes a stricter rule for counties in how they can change precinct boundaries. They may divide a precinct either while leaving the outer boundaries the same, or merge one or more precincts, leaving the outer boundaries the same. The only other way to change a precinct line would be to move a line that is not now
Chapter 6 Constitution and Elections
Page 30
on a Census block boundary to a Census block boundary. Since very few precinct lines are not on Census block lines, this third power would be rarely used. Precinct changes for the 2004 general election would have to be completed by Sept. 17, 2004. As for precinct names, the act prohibits a county from using a new precinct a name, that in the past has been used for a precinct for different territory. The State Board of Elections ( State Board) would be responsible for enforcing the requirement. The " recycling" of precinct names in certain counties has been a vexation for people who try to keep up with voter registration and election data. The duty to check to see if a name has been used in the past only goes back to January 1, 1999. Before that, the State Board does not have precinct names available electronically.
Change of Superior Court Judge District 14A in Durham. – The act makes a small boundary change in Superior Court District 14A in Durham County. The district would include a house into which the incumbent, Judge Orlando Hudson, plans to move. Judge Hudson is running for re- election this year unopposed.
Benchmark for number of signatures on petitions. – The act sets voter registration as of January 1st of the election year, as the benchmark for calculating the number of signatures needed on petition for unaffiliated candidacy. Prior law said an unaffiliated candidate must collect signatures from registered voters equal to certain percentages of registered voters as of " most recent" voter registration report by State Board. That was written when the State Board produced such a report twice a year. Now, with its statewide, computerized voter registration system, the State Board keeps constant track of number of registered voters, so the benchmark has become a moving target. This provision fixes the target at January 1.
Scanned documents. – The act allows transmission of voter registration forms and overseas absentee ballot applications by emailing a scanned document, as well as faxed, mailed, and in person transmission.
New party petition wording. – This act removes from the statutory wording of a new party petition the current language that the undersigned voters " INTEND TO ORGANIZE" the new party. A federal court indicated in 1995 in a lawsuit brought by Libertarians that the language might violate the First Amendment as an unreasonable burden on the rights of new- party organizers, but the court did not rule on the language then because the Libertarians presented no evidence that the language had hindered their efforts. The ACLU- NC says it has 30 affidavits produced by the Green Party from voters saying they would have signed a petition to admit the Green Party to the ballot except for the language on the petition saying they intended to organize the party. They said they did not intend to organize the party, but they did want to help it get on the ballot if all they had to do was sign the petition.
Birthdate privacy. – Currently the statute requires a voter to provide date of birth as an identifier. Election officials find it useful to distinguish many people with names like John Jones, some of whom live at the same address. The date of birth on a voter registration record is a public record. Some county boards of elections ( Durham, for example) make a voter's date of birth available on their websites through a search of the records, if you plug in the voter's name. The State Board of Elections provides date of birth and address on the voter records searchable on its website, but it only provides those items if the searcher already knows the date of birth. This section would make date of birth a confidential item not only on elections websites but also on voter registration records. Candidates, elected officials, and challenged voters would be exempted from the protection, as would any voter who waived the date- of- birth privacy. Disclosure of the age of any voter would not violate the date- of- birth confidentiality requirement. This section would become effective June 1, 2005.
This act became effective on July 26, 2004; except for the precinct changes, which become effective August 15, 2004, and apply to precincts established on or after that date; and the birth date privacy changes, which become effective June 1, 2005. ( BG)
Chapter 6 Constitution and Elections
Page 31
Adjust Court Juris./ Amend Magistrate Term
S. L. 2004- 128, Secs. 16- 18 ( SB 577, Secs. 16- 18) place a proposed constitutional amendment to change the terms of magistrates on the November 2, 2004 ballot. Under the current constitutional provision, all magistrates' terms are two years. Under the proposal, a magistrate's first term would be two years but subsequent terms would be four years. The amendment would also give the General Assembly discretion in determining how magistrate vacancies would be filled.
These sections became effective July 17, 2004.
Sections 1 and 2 of this act address jurisdictional issues in small claims courts and the superior courts. For additional information, see Courts, Justice and Corrections.
Section 3 of this act concerns adding a drug treatment court program as intermediate punishment. For additional information, see Criminal Law and Procedure.
Sections 4 and 5 of this act concern the notice of a mechanics lien for storage charges for vehicles held under the driving while impaired forfeiture laws. For additional information, see Civil Law and Procedure.
Section 6 of this act authorizes the clerk of court to enter judgments by default. For additional information, se Civil Law and Procedure.
Sections 7 through 14 of this act concern termination of certain parental rights of persons convicted of first or second degree rape. For additional information, see Criminal Law and Procedure.
Section 15 of this act concerns prohibiting the threatening of a witness with the assertion or denial of parental rights. For additional information, see Criminal Law and Procedure.
Section 19 of this act concerns the number, term, and appointment of magistrates and becomes effective only if the constitutional amendment is approved. For additional information, see Courts, Justice and Corrections. ( BG)
Clarify Who May Hear Elections Directors' Dismissal
S. L. 2004- 203, Sec. 58 ( HB 281, Sec. 58) amends G. S. 163- 35( b) to allow the State Board of Elections, by a vote of all the remaining members, to delegate to one or more of its members the authority to hear and decide on the dismissal of a county election director, whether that dismissal proceeding was initiated by the county board or by the State Board.
This section became effective August 17, 2004. ( EC)
Account Numbers Confidential Clarifications
S. L. 2004- 203, Sec. 59 ( HB 281, Sec. 59) amends G. S. 163- 278.7( b)( 7) to clarify that any account number included in any report required to be filed with the board under Article 22A of Chapter 163, Regulating Contributions and Expenditures in Political Campaigns, and filed after March 1, 2003, must be keep confidential. The " board" is the State Board of Elections for candidates for State, legislative, and judicial offices and the county or municipal board of elections for candidates for county and municipal offices.
This section became effective January 1, 2003. ( EC)
Judicial Campaign Reform Clarifications
S. L. 2004- 203, Sec. 60 ( HB 281, Sec. 60) amends the Judicial Campaign Reform Act to clarify the criteria that the State Board of Elections must use in establishing guidelines for permissible expenditures of public campaign funds. The act requires that the State Board of Chapter 6 Constitution and Elections
Page 32
Elections differentiate expenditures that reasonably further a candidate's campaign, from expenditures for personal use that would be incurred in the absence of the candidacy.
This section became effective August 17, 2004. ( EC)
Studies
New/ Independent Studies/ Commissions
Electronic Voting systems Study Commission
S. L. 2004- 161, Part XII ( SB 1152, Part XII) establishes the Electronic Voting Systems Study Commission. The Commission is to study whether direct record electronic ( DRE) voting systems should be prohibited in North Carolina unless each unit of the system produces a voter- verifiable paper record that is suitable for a recount or a manual audit and that is equivalent or superior to the paper record produced by a paper ballot system. The Commission will include nine members: four appointed by the President Pro Tempore of the Senate, four appointed by the Speaker of the House, and the Executive Director of the State Board of Elections. The President Pro Tempore's appointments must include a county commissioner, a county election director, and a person who has been an active advocate on the issue of prohibiting DRE equipment without voter- verifiable paper records. The Speaker's appointment must include a member of the State Board of Elections, a member of a county board of elections, and an expert on computer security. The Commission is required to report to the 2005 General Assembly when it convenes. Upon making its report, the Commission will terminate.
This section became effective August 2, 2004. ( BG)
For a complete list of the studies and reports authorized by the 2004 Session of the
2003 General Assembly, please refer to the Appendix contained in this publication. Chapter 6 Constitution and Elections
Page 33
Chapter 7
Courts, Justice and Corrections
Brenda Carter ( BC), Tim Hovis ( TH), and Hal Pell ( HP)
Enacted Legislation
Involuntary Commitment Warrant Classification
S. L. 2004- 23 ( HB 1366) amends several statutes related to involuntary commitment in Chapter 122C of the General Statutes, to clarify that a custody order related to involuntary commitment that is issued by a clerk of court, magistrate, or court is valid throughout the State.
This act became effective June 25, 2004. ( BC)
Mental Health Treatment Courts
S. L. 2004- 124, Sec. 10.27 ( HB 1414, Sec. 10.27) directs the Administrative Office of the Courts ( AOC) to establish pilot programs in judicial districts 15B ( Chatham), 26 ( Mecklenburg), and 28 ( Buncombe), that add a mental health treatment component to the existing drug treatment courts in those districts. The pilot programs will expand those courts into therapeutic court programs aimed at providing treatment to repeat adult offenders with needs for either mental health or substance abuse services. The AOC is to collaborate with the Department of Health and Human Services, Division of Mental Health, Developmental Disabilities, and Substance Abuse Services, on a plan for the structure of the court process, treatment services provided by area authorities or county programs and other appropriate mental health service providers, and administration of the pilot programs. The AOC is required to report to specified appropriations committees by March 1, 2005, on the implementation of the therapeutic treatment court pilot programs and the feasibility and desirability of expanding the existing drug treatment court program into a statewide therapeutic court program.
Funds appropriated for the 2004- 2005 fiscal year include: ( i) $ 36,161 to AOC to cover administrative costs and $ 20,000 to the Judicial Department for obtaining an independent evaluation of the effectiveness of the pilot programs and ( ii) $ 137,940 to the Department of Health and Human Services, Division of Mental Health, Developmental Disabilities, and Substance Abuse Services for mental health treatment services to repeat adult offenders within the targeted population for mental health, developmental disabilities, and substance abuse services. A county may appropriate county or other non- State funds to expand mental health services to adult repeat offenders served by the pilot programs.
This section became effective July 1, 2004. ( BC)
Collection of Worthless Check Funds
S. L. 2004- 124, Sec. 14.2 ( HB 1414, Sec. 14.2) authorizes the Judicial Department to use up to $ 500,000 in receipts collected from the Worthless Check Program to create up to 10 positions in district attorneys' offices that are establishing or expanding programs for the collection of worthless checks. The Judicial Department is to report to specified appropriations subcommittees of the General Assembly on implementation of the expansion by March 1, 2005.
This section became effective July 1, 2004. ( BC)
Chapter 7 Courts, Justice and Corrections
Page 34
Plan to Continue Drug Court Services
S. L. 2004- 124, Sec. 14.2B ( HB 1414, Sec. 14.2B) directs the Administrative Office of the Courts ( AOC) to develop a plan to continue providing drug treatment court services in districts currently offering those services through time- limited non- State funding. This plan is to include a long- range plan for provision of drug treatment court services in any district where feasible and needed. The AOC is to report on this plan to the Chairs of the House of Representatives and Senate Appropriations Subcommittees on Justice and Public Safety by March 1, 2005.
This section became effective July 1, 2004. ( BC)
Office of Indigent Defense Services/ Expansion Funds/ Juvenile Defender
S. L. 2004- 124, Sec. 14.3 ( HB 1414, Se